Anti-terrorism, Crime and Security Act 2001: Detainees

Lord Ahmed: asked Her Majesty's Government:
	What is the total number of people held in custody under the Anti-terrorism, Crime and Security Act 2001; what are their nationalities; and how many have been convicted.

Lord Falconer of Thoroton: My Lords, 15 foreign nationals have so far been detained using powers in Part 4 of the Anti-terrorism, Crime and Security Act 2001. Eight were detained in December 2001, one in February 2002, two in April 2002, one in October 2002, one in November 2002 and a further two in January 2003. Of the total detained, two have voluntarily left the United Kingdom. The other 13 remain in detention. They have been detained under an immigration power. They are not being held pending criminal charges.
	Under the Special Immigration Appeals Commission's direction under Section 11 of the Contempt of Court Act 1987, we are directed that,
	"there shall be no publication of any matter which may identify them or any of them".
	Therefore, the nationalities of those detained must remain undisclosed.

Lord Ahmed: My Lords, I thank my noble and learned friend for his reply. Can he tell the House whether any of those detained have been involved with any terrorist activities in this country? Were their arrests due to intelligence received from their countries of origin or from their activities in this country? Will they be extradited to their countries of origin or will they remain in custody for a very long time and, if so, for what period?

Lord Falconer of Thoroton: My Lords, I shall not comment on any intelligence material. As I said in the Answer to the Question, their detention comes under an immigration power. We wish to deport them from this country because they are suspected terrorists. We cannot deport them because we fear what may happen to them if we do so. Therefore, they are detained in this country until they can be deported.
	As I indicated, the detainees can leave voluntarily if they wish, and two of them have done so. Therefore, criminal charges are not pending. How long they remain in custody will depend on the view of the Secretary of State and the review of their position by SIAC. SIAC must consider their position and the hearings will start on 19th May. After a conclusion has been reached, the decision will be reviewed every six months thereafter.

Lord Biffen: My Lords, will the detainees be deported to countries which operate the death penalty?

Lord Falconer of Thoroton: My Lords, the country to which they would be deported, if they agreed to go, would depend on the nationality of each individual defendant. I cannot say whether or not those countries have the death penalty.

Lord Marsh: My Lords, given the current circumstances around the world in which the death toll from terrorism currently runs well into the thousands, is it not perfectly reasonable that the authorities should take a considerable interest in persons who have been involved in terrorism, whether in this country or anywhere else?

Lord Falconer of Thoroton: My Lords, it is perfectly reasonable. We have balanced the rights of the individual against the national security of the state. The approach that we have taken is sensible and has been approved by the courts as being both sensible and lawful.

Baroness Walmsley: My Lords, does the Minister agree that it is always preferable that suspects should go through due process? Can he say how many people arrested under this legislation have subsequently gone through the normal processes of the courts following a charge?

Lord Falconer of Thoroton: My Lords, the Question relates to Part 4 of the Anti-terrorism, Crime and Security Act. I gave the numbers in the Answer. The total was 15 foreign nationals. I repeat that this is not a precedent to criminal proceedings. This matter comes under an immigration power. We would wish to remove those people from the country because we believe that they pose a threat, but we are not prepared to put them in the danger that would arise from their being deported. Therefore, these are not criminal proceedings; they are immigration powers intended to protect the state and to protect the interests of the defendant.

Lord Thomas of Gresford: My Lords, I refer to an earlier reply of the Minister in which he stated that the detainees have not as yet appeared in front of SIAC. If that is the case, has no one looked at them since their arrest, which occurred a considerable time ago?

Lord Falconer of Thoroton: My Lords, the point first raised in relation to SIAC was whether or not the derogation from the European convention was lawful. That matter was not resolved until October 2002 and, indeed, a further appeal is possible. However, the merits of the cases are now to be considered by SIAC in accordance with the provisions of the Act, and that is due to start in May. Initially, the detainees' position was looked at by the Home Secretary.

Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for the helpful answers that he has given today on these difficult issues. He referred to legal procedures that are coming into effect with regard to SIAC. Can he say something about the special advocate procedure? His noble friend Lord Filkin, in reply to my noble friend Lord Bridgeman, said that that would be kept under review. Can the Minister say what kind of review it will be and under what timescale it will be carried out?

Lord Falconer of Thoroton: My Lords, the special advocate procedure involves someone being appointed to represent the detainee at SIAC. That person is entitled to hear closed evidence which the detainee himself would not be able to hear. I do not believe that any specific review of the role of the special advocate is intended to take place. The special advocate is there to protect the interests of the detainee but in a way that also protects the national security of the state.

Lord Roberts of Conwy: My Lords, are any of the 13 remaining detainees required or wanted as international terrorists in other countries?

Lord Falconer of Thoroton: My Lords, I am not prepared to make any comment about the details surrounding any of the detainees.

Baroness Walmsley: My Lords, some of the detainees may be from Algeria. Can the Minister explain the difference between our attitude to the Government of Algeria and that of the French Government?

Lord Falconer of Thoroton: My Lords, I am not prepared to say anything that indicates the nationality of the detainees.

Services for Older People

Baroness Howe of Idlicote: asked Her Majesty's Government:
	What further action they intend to take to improve co-ordination across departments in light of the National Audit Office's report, Developing Effective Services for Older People.

Lord McIntosh of Haringey: My Lords, we welcome this publication by the National Audit Office, which provides a very fair report on government achievements in the field of policy on older people. We are pleased that it acknowledges the effort we have put in towards better co-ordination across government. It notes, in particular, our successes, such as setting up a Cabinet Sub-Committee on Older People, appointing a Cabinet Champion for Older People, designating the Department for Work and Pensions to take the lead on older people's issues, and establishing the Pension Service to provide a dedicated benefits service for pensioners. However, that does not leave room for complacency. We acknowledge that still more could be done. We accept all the National Audit Office's recommendations.

Baroness Howe of Idlicote: My Lords, I certainly congratulate the Government on the important initiatives that are currently under way for improving the access of older people to services that they need. However, in accepting all the recommendations of the National Audit Office, does the Minister nevertheless agree that there remains a lack of departmental co-ordination and feedback for those consulted in some areas? With the number of old people likely to grow from approximately 10.5 million today to 16 million by 2040, does the Minister accept the need for policies to be planned across all government departments to meet that challenge? Can he say when the older people's strategy, long promised by the Department for Work and Pensions, is to be published and whether it will, in particular, identify one department to be responsible for the co-ordination of these services?

Lord McIntosh of Haringey: My Lords, although I accept the recommendations of the National Audit Office, I believe that to some extent it was scratching around for things to criticise. It is such a favourable report that it is difficult to read it in the way I fear the noble Baroness, Lady Howe, has been doing. However, there is a substantive point about the promise we made to produce a strategy for older people. We have not done so. I think, frankly, that the priority lies in communication with older people themselves. The noble Baroness, Lady Howe, said feedback—and she is quite right—such as updating the publications, which are now a little out of date, should be addressed to people themselves. The time for White Papers, cross-cutting reviews and strategies may be past. It is better to communicate directly.

Lord Higgins: My Lords, there is a need for greater co-ordination. But, having been the Member of Parliament for the constituency with the oldest population in the country, I may perhaps have some understanding of the needs of older people, which is a matter mentioned in the report. Is it not the case—and does not the Minister's rather obvious embarrassment about the sycophantic nature of this report reflect the fact—that many older pensioners really do not want to be patronised? The idea of a Cabinet Champion for Older People and reports which bear titles such as Winning the Generation Game are likely to be mixed with a reaction veering from cynicism to nausea.

Lord McIntosh of Haringey: My Lords, as one old person to another, in a House with quite a number of older people, I have some sympathy with that. Nevertheless, it is a fact that a large number of departments provide services for older people. It is necessary that someone should get a grip on it all. It is necessary to have a Cabinet committee, not for the sake of holding more committee meetings, but so that each department is signed up to the work done by the lead department, which is the Department for Work and Pensions.

Lord Marlesford: My Lords, does the Minister agree that with rapidly improving medical standards, growing standards of living and so forth, older people are rapidly becoming younger people?

Lord McIntosh of Haringey: My Lords, yes, I think so. It is certainly true that there are more older people than people under 16 in this country for the first time in history.

Baroness Greengross: My Lords, does the Minister agree that the ageing of society generally and the huge increase in longevity, which is somewhat different, means that this is a global as well as a national issue? Should the Government really take not only a wider and better co-ordinated view of policy, but also a longer-term policy, perhaps by renaming the Cabinet sub-committee "Ageing: older people and longevity", because forward planning is of extreme importance and should be long term?

Lord McIntosh of Haringey: My Lords, certainly, it is an international issue. I would not call it an international problem. Of course, as people get older—as the noble Lord, Lord Marlesford, rightly said—their capacities survive for longer. Therefore, it is possible that people could work longer if they wanted. Many of us are rather in favour of that. So it is not a problem internationally; it is increasing the number of people who have a full working life and then the number of people who have an opportunity to enjoy it afterwards.

Baroness Barker: My Lords, I declare an interest as an employee of Age Concern England. Does the Minister accept the criticism in the report that the national service framework for older people is the only one that has been introduced without any funding? Will there be further research to measure whether the co-ordination at national level is reflected locally; and whether that has resulted in real outputs for older people or whether it has just been a series of yet more short-term initiatives?

Lord McIntosh of Haringey: My Lords, we have accepted all the recommendations. I cannot find that particular one in the list, so I think that I can give the noble Baroness, Lady Barker, the assurance she seeks. Of course, an important issue is contact with older people when they want to be contacted and only when they want to be contacted. That is a local issue, as she rightly says.

Baroness Byford: My Lords, can the Minister respond in particular with regard to those elderly who become frail? I am not talking about the vast majority of us who are lucky enough to enjoy good health. I believe that one of the big problems that still exists is in the tie-up between home care and health and hospitals. Locally as well as nationally, there is still grave concern in ensuring that the services needed by a person returning home from hospital are co-ordinated properly. It is an area that needs addressing.

Lord McIntosh of Haringey: Indeed, my Lords. The House has spent many happy hours debating the subject on the Community Care (Delayed Discharges etc.) Bill. I am pleased to record that at the conclusion of that debate there seemed to be a much greater degree of agreement around the Chamber about the Bill than there had been at the beginning. I think that shows the Government's recognition of and concern about this problem.
	The noble Baroness, Lady Byford, will have noticed that in yesterday's Budget the Chancellor announced that there would be no removal of the basic state pension for pensioners who are in hospital for up to 52 weeks, which will undoubtedly help.

Lord Harrison: My Lords, has my noble friend consulted the Prime Minister on this issue, who, according to SAGA magazine, next month officially becomes old?

Lord McIntosh of Haringey: My Lords, if the Prime Minister thinks that 50 is old, then he expects less of himself than the rest of us. We think that the Prime Minister will go on in his prime for a very long time.

SARS

Lord Alton of Liverpool: asked Her Majesty's Government:
	What advice they are issuing and what measures they are taking to contain the spread of severe acute respiratory syndrome (SARS).

Baroness Andrews: My Lords, the Department of Health issued information and advice to all general practitioners, trusts and public health professionals on Thursday 13th March and Monday 7th April. The department also issued advice to the public and travellers to south east Asia about SARS. As a result of this timely response, to date we have had only five probable cases of SARS in the UK against a total of 2,722 in 16 other countries. The Department of Health and the Health Protection Agency continue to monitor the situation.

Lord Alton of Liverpool: My Lords, in thanking the Minister for that Answer, might I ask for her assessment of reports in today's newspapers that the Government of China have concealed the extent of the spread of SARS in China, and, indeed, the evidence given to a select committee of the Senate on Monday by the World Health Organisation that the outbreak might have been curbed much more quickly had they acted earlier? Are the Government any nearer to identifying the nature of the virus; what is the latest science on the spread of the virus; are they giving any consideration, as in America, to the quarantine issue; and, on the issue of health workers, given the large number who have died in Hong Kong, have they given advice to health workers in this country?

Baroness Andrews: My Lords, I shall answer what I think are the two most critical questions here—first, the attitude of the Chinese Government to the spread of the disease; and, secondly, what the research tells us. The Chinese Government came under some strong criticism from the WHO but are now co-operating. An expert WHO team has visited Beijing and Guandong to conduct research. We expect a report from it. It has met the officials, the researchers, and so on, who are involved. The Chinese ministry of health has introduced tighter controls and procedures now in order to control the outbreak. There is a central task force being set up to monitor it. Obviously, we still maintain our advice to travellers that they should not travel to the two areas of Hong Kong and Guandong if at all possible.
	On our current information about research, the WHO has co-ordinated research across the world in public health laboratories, including our own very expert Central Public Health Laboratory at Colindale. It suggests that the SARS associated coronavirus is probably the major cause, but that there are other infections which may play a part. These discoveries are very positive. We are proud that our own public health laboratory has played a key role. This will now enable work to be developed on tests to detect the presence of the viruses in patients. So we are now at the next stage where we can begin to develop the diagnostic tests which will help us to determine the actual SARS virus itself.

Baroness Gardner of Parkes: My Lords, can the Minister recall that she set out very clearly, at col. 643 of the Official Report of 25th March the detailed reply about how people were informed? I understand that that is working very well. But is she aware that air flights are one of the major forms of transmission of this disease? Through the World Health Organisation, can we ask airlines to ensure better recirculation and filtration of air because any infection is transmitted very easily in this way?

Baroness Andrews: My Lords, perhaps I may first address the question of transmission. As far as we know, the disease is transmitted by coughing and sneezing. I take the point about recirculation. The WHO has issued guidance to reinforce general procedures; it has not addressed that issue to date. On the question of people entering the country, environmental health officials are boarding incoming aircraft from infected areas at Heathrow on a random basis to check with cabin crew whether they are aware of anyone who may present symptoms of SARS. We hope that that will work well. We are also in the process of issuing leaflets that will be available at ports of entry.

Lord Walton of Detchant: My Lords, early reports from the Far East suggested that the agent responsible for the syndrome might be a paramyxovirus but, as the noble Baroness said, the most recent research suggests that it is a coronavirus. From the research carried out to date, does the Minister have any information as to whether the agent is responsive or sensitive to anti-viral agents and whether there is any prospect in the foreseeable future of producing an effective vaccine?

Baroness Andrews: My Lords, not being a microbiologist, I do not know much about the virus itself, but I know that we have only five probable cases in the country. Three have recovered and gone home; two are in hospital in a stable condition. Those patients have been treated empirically with antibiotics and anti-viral agents; they are also being supportively nursed, as noble Lords would expect, to protect their general recovery. We shall have to wait until we are a little further down the road of research for information about a potential vaccine.

Lord Faulkner of Worcester: My Lords, is my noble friend aware that of 112 suspected cases in Taiwan, 17 have been definitely confirmed as suffering from SARS? Taking up the point about the World Health Organisation, what does my noble friend have to say about the fact that Taiwan, having notified the WHO about the outbreak on 14th March, has now heard that the WHO has absolutely declined to offer any assistance to Taiwan because of possible objections from the People's Republic of China? As a consequence, one young boy who entered Taiwan from Vietnam had to be flown to the United States for treatment. Does not my noble friend think that an extraordinary way in which to tackle a serious disease?

Baroness Andrews: My Lords, it is probably outside my brief to comment on international diplomacy and relations between China and Taiwan, but what I would say is that the Foreign Office has advised that all travellers to Taiwan should be aware of the current situation as cases of SARS continue to increase, of the fact that they may be screened prior to air travel, and of the symptoms of SARS. We are doing all we can to keep people alert and well-informed.

Baroness Barker: My Lords, what advice is given to travellers to other places, such as the United States, where there have also been incidences of the virus, about steps they can take to protect themselves from transmission?

Baroness Andrews: My Lords, so far as I am aware, we have not issued any such advice to travellers to the US. We have issued advice to travellers to Toronto in Canada where there has been a specific and traceable outbreak.

Earl Howe: My Lords, if a suspected carrier of SARS arrives in the UK, is it not essential for the authorities to be able to quarantine that person? Will the Government take powers under the Public Health (Control of Disease) Act 1984 to make SARS officially notifiable, so that it would be possible to detain those suspected of having SARS? If they do not intend to do so, why not?

Baroness Andrews: My Lords, as I have explained, the normal health procedures are in place and are working well to identify people who are travelling on aircraft. The pilot radios ahead and all necessary steps are taken. We are not yet at the stage where quarantine is necessary. Our public health surveillance systems are working well—as I said, we have had only five probable cases—and we will be monitoring the situation. We will clearly take appropriate action, should that be necessary.

Lord Chan: My Lords—

Baroness Symons of Vernham Dean: My Lords, we are now in the 24th minute. In fairness to the last questioner, we should move on.

Secondary Schools: Examinations

Baroness Seccombe: asked Her Majesty's Government:
	Whether they consider that the arrangements for this year's post-16 examinations in secondary schools are satisfactory.

Lord Davies of Oldham: My Lords, Mike Tomlinson's recommendations to secure the 2003 examinations have been implemented in full by the Qualifications and Curriculum Authority and the awarding bodies. We are making an additional £6 million available to QCA to help ensure that the 2003 examinations are delivered accurately and effectively, with particular attention paid to ensuring that there are sufficient examiners. The Examinations Task Force, chaired by the QCA with representatives from the awarding bodies and the teaching profession, will oversee delivery of the examinations.

Baroness Seccombe: My Lords, I thank the Minister for that reply, but has he read the letter in The Times this Tuesday from a mother, stating that her son will on 23rd May, in the morning, be sitting two English AS-level papers, beginning at 9.15, followed in the afternoon by three geography papers, the last of which begins at 4.45? That is five examinations in one day. Does the Minister think it fair to expect anyone to have to experience such a pressurised timetable and then perform to the best of his or her ability?

Lord Davies of Oldham: My Lords, the noble Baroness has identified a case that should cause concern. It is clearly too demanding on a student to face so many examinations in one day. I am sure that arrangements can and will be made to change that position.
	Let us recognise the nature of the problem. Increasing numbers of students are putting themselves forward for greater numbers of A-levels. Whereas in the past, taking two or three used to be regarded as the norm, four or even five may now be taken. That gives rise to acute problems in timetabling examinations, but the noble Baroness has a point.

Baroness Walmsley: My Lords—

Baroness Blatch: My Lords—

Baroness Symons of Vernham Dean: My Lords, I am bound to say that it was a Conservative Question. Perhaps the noble Baroness, Lady Blatch, will take her turn after the Liberal Democrats.

Baroness Walmsley: My Lords, I thank the noble Baroness. Will the Minister tell the House where the Government's thinking on Curriculum 2000 is going? Are they still wedded to the AS/A2 A-level split, or are they considering development of the English baccalaureate, which is strongly supported by some academics at the Institute of Education in London because of the enormous pressure that A-level examinations place on 16 to 18 year-olds, as described by the noble Baroness, Lady Seccombe?

Lord Davies of Oldham: My Lords, one of Mike Tomlinson's recommendations was that the whole question of examinations from 14 to 19 should be considered. That review is taking place and is taking into account the point made by the noble Baroness. The international baccalaureate finds favour in some circles. We should not underestimate the number of schools in this country that already pursue courses in the IB—it is a considerable number.
	However, to make such a significant change, there would have to be agreement across the whole education profession and in education thinking. In any case, it would take considerable time. But the noble Baroness is right; considerable thought is being given to those issues, not least because it is widely recognised that the examination demands that we make on students from 14 through to 19 are creating significant problems that may not be entirely conducive to the best form of education.

Baroness Blatch: My Lords, the Minister is astonishingly sanguine about both the examination arrangements for this year and the pressure on young people. I do not think that the lady to whom reference has been made will be very comforted about the pressures on her son.
	Teachers are being asked by the QCA to take time off during the summer term to mark examination papers. Does the Minister agree with John Dunford of the Secondary Heads Association, who said:
	"the . . . problem is over-examination of school students. Until they"—
	that is, the Government, do something about it, they will simply,
	"lurch from crisis to crisis"?

Lord Davies of Oldham: My Lords, I hope that I was not being over-sanguine. I reflected the review carried out by Mike Tomlinson, with his clear recommendations on how we can secure the position for this year. He is satisfied that we are making progress. We have had something of a trial run—of course, a minor one—with the January examinations. But that was regarded as a successful development in the new examinations structure. We are confident about that. We are not sanguine; we recognise the problems. I appreciate the point made by the noble Baroness, Lady Seccombe, about timetables. Of course, what the noble Baroness asks for is desirable. We need to reduce the number of demands on students in examinations. But nobody suggests that that can be done at the flick of a switch.

Business

Lord McIntosh of Haringey: My Lords, with the leave of the House, at a convenient moment after 1 p.m. my noble friend Lady Symons of Vernham Dean will repeat a Statement on Iraq. Then, with the leave of the House, at a convenient moment after 4 p.m. my noble friend Lady Amos will repeat a Statement on the humanitarian situation and rehabilitation in Iraq.

Communications Bill

Baroness Blackstone: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That it be an instruction to the Committee of the Whole House to which the Communications Bill has been committed that they consider the Bill in the following order:
	Clauses 1 and 2, Schedule 1, Clauses 3 to 27, Schedule 2, Clauses 28 to 60, Clauses 62 to 71, Clauses 74 to 103, Schedule 3, Clauses 104 to 115, Schedule 4, Clauses 116 to 156, Schedule 5, Clauses 157 to 177, Schedule 6, Clauses 178 and 179, Schedule 7, Clauses 180 to 189, Schedule 8, Clauses 190 to 196, Schedule 9, Clauses 197 to 216, Schedule 10, Clauses 217 to 267, Clause 61, Clauses 72 and 73, Clauses 268 to 289, Schedule 11, Clauses 290 to 331, Schedule 12, Clauses 332 to 338, Schedule 13, Clauses 339 to 342, Schedule 14, Clauses 343 to 353, Schedule 15, Clauses 354 to 382, Schedule 16, Clauses 383 to 399, Schedules 17 to 19, Clauses 400 to 403.—(Baroness Blackstone.)

On Question, Motion agreed to.

Electricity (Miscellaneous Provisions) Bill

Read a third time.
	Clause 1 [Expenditure relating to British Energy p.l.c.]:

Lord Ezra: moved Amendment No. 1:
	Page 1, line 6, at end insert "for the purposes of—
	(i) ongoing operational support of the British Energy company whilst a restructuring deal is being put in place,
	(ii) the funding of trading arrangements of the operating companies of the British Energy company should a restructuring deal fail, or
	(iii) funding in the event of British Energy being put into administration"

Lord Ezra: My Lords, I am happy to be able to speak to Amendment No. 1, the purpose of which is to define the circumstances under which the financial assistance can be provided to a British Energy company under Clause 1(1)(a). It is a reworded version of similar amendments moved at earlier stages, which takes account of the Minister's comments, notably in Committee on 17th March, at cols. GC3–5, and on Report on 3rd April, at cols. 14–17.
	Throughout the consideration of the Bill, we on these Benches and the noble Baroness, Lady Miller of Hendon, the noble Lords, Lord Jenkin and Lord Hodgson, on the Conservative Benches have sought to define the nature of the special package of support to be provided to British Energy in the difficult circumstances in which it find itself. Because of the nuclear implications, it has been singled out among other generators that have also suffered from a substantial fall in wholesale prices. It is therefore important that there be absolute clarity about the form and limits of the assistance to be provided.
	The noble Lord, Lord Jenkin, referred in Committee, at col. GC5, to the concern of other generators. I, too, have heard of that concern, especially that the support to British Energy has enabled it to offer electricity to the market at prices that it could not otherwise sustain. I hope that the Minister can deny those rumours. But they explain why it is important that the Bill should make as clear as possible the purposes for which the assistance is being provided. As the Minister's own words have been incorporated in the amendment, I trust that he will find it possible to accept it. I know that the noble Lord attaches great importance to flexibility, but there must surely be some assurance about how the money is to be used. I beg to move.

Baroness Miller of Hendon: My Lords, I support the amendment. I apologise that I was in the House too late yesterday to put my name to it; otherwise, I would have done. We on these Benches and my honourable friends in another place have been concerned that the Bill as drafted was just a little too wide. We believe that it gave the Government scope to indulge in matters not connected with the problem it was intended to solve; namely, to back up the rescue of British Energy.
	The Minister, at a meeting that we held recently, gave us certain assurances, for which we are all grateful, about the Government's intentions and their interpretation of the powers that they were taking in the Bill. Amendment No. 1, which has now been virtually redrawn by the noble Lord, Lord Ezra, gives effect in black and white to what the Minister told us. I see no harm in the Government's stated intentions being enshrined in the legislation.
	If the amendment truly gives effect to the Government's stated intentions—I am sure that it does—it is to be hoped that the Minister would not feel that it was not flexible, as the noble Lord, Lord Ezra, said, or that it was too prescriptive.
	I hope that the Minister can accept the amendment. If he cannot, perhaps he could state in the clearest terms that it represents the Government's present and future policy and intentions.

Lord Sainsbury of Turville: My Lords, I thank the noble Lord, Lord Ezra, for giving the department advance notice of his intention to table this amendment. I very much understand his desire to pin down the Government as to what they intend to use the clause for. I am very happy to make absolutely clear the Government's position.
	We see Clause 1(1)(a) as being used almost totally for the three areas referred to in the noble Lord's amendment. Any further use of the clause would be very minor compared to those three main purposes. But I do not believe that it would be appropriate to try to constrain the use of Clause 1(1)(a) to just those three items.
	There may be a limited need for expenditure on a British Energy company in other areas. I think in particular of expenditure and pursuance of the Government's support for BE's restructuring plan. We said previously that our financial assistance for restructuring was based on support for nuclear liabilities. The intention is to give that under Schedule 12 to the Electricity Act 1989. That remains the case.
	As we move forward in drawing up the very detailed arrangements for the formal undertaking between the Government and British Energy, we are keen to ensure that there are no items that might fall through the net. For that reason, we want to make sure that Clause 1 is still left flexible enough to allow us to fund any small items that might not be captured by Schedule 12. I should stress that we would expect any such items to be small. To some extent, having Clause 1(1)(a) available is simply a precaution. It makes it absolutely clear that we have absolute authority to incur expenditure on a British Energy company, ensuring that there is no legal uncertainty over whether some small item of expenditure fully fits within Schedule 12 or not.
	In the end, we may never need to use Clause 1 for that purpose. None the less, the mere existence of Clause 1(1)(a) could have helped to remove any doubt. The company's creditors need to have certainty over the Government's commitment if they are to support the restructuring, and having Clause 1 helps them to do that.
	As part of the restructuring, the Government will commit to fund any shortfall in paying to decommission BE's stations. Schedule 12 allows for funding,
	"the decommissioning of any installation the operation of which requires a licence under section 1 of the Nuclear Installations Act 1965".
	But we want to make sure that nothing slips through the net. We want to ensure, for example, that there is no doubt that funding could be provided for the complete decommissioning of a site, including, perhaps, the cost of dismantling construction on the nuclear site, such as sea walls and office buildings, which have not been subject to irradiation, and where there might be some uncertainty as to whether the provisions of Schedule 12 apply. Rather than get bogged down over a matter of legal interpretation of Schedule 12, it would be very useful to have available the flexibility of Clause 1(1)(a) to ensure that the items that fit within the spirit of Schedule 12 clearly have parliamentary authority. I accept that it is a question of having both a belt and two or three pairs of braces. But, in the circumstances, I think that it would be appropriate.
	The amendment would limit the flexibility that Clause 1(1)(a) gives in relation to the provision of assistance to a British Energy company. As I have explained, that might give rise to legal uncertainty at the margins as far as concerns creditors, which could undermine the restructuring plan. We are, of course, keen to avoid that.
	I hope that, with my explanation and clarification of the Government's position, the noble Lord will be prepared to withdraw his amendment.

Lord Ezra: My Lords, I thank the Minister for that response. I note that he agrees that the three purposes mentioned in the amendment are the main ones for which Clause 1(1)(a) would be used, and that any variant from that would be extremely limited. Under those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Sainsbury of Turville: My Lords, with renewed enthusiasm, I beg to move that this Bill do now pass.
	Moved, That the Bill do now pass.—(Lord Sainsbury of Turville.)

Baroness Miller of Hendon: My Lords, the Bill was clearly necessitated by the unfortunate problems of the flagship company, British Energy. It is not a secret that on these Benches we have reservations about the Government's approach, especially after the Bill began its passage through Parliament, when the immediate threat of administration was lifted. We felt that the Government could have gone back to the drawing board and presented a Bill that dealt specifically with the company's new situation. We also thought at the time that the Bill gave the Government excessive powers.
	However, we are grateful to the Minister for having courteously paid attention to the representations made by both me and my noble friend Lord Jenkin of Roding and by the noble Lord, Lord Ezra, and that he has taken time to discuss those views with all three of us. It probably did not escape his notice that the amendments we put down, except for that one today, bore the names of all three of us. We appreciate his efforts to accommodate us as far as he could. We therefore support the Motion that this Bill do now pass, and we all hope that it will achieve the objectives that everyone shares.

Lord Ezra: My Lords, I, too, would like to thank the Minister and his department for the efforts that they made to discuss with us our reservations about the Bill so that they were fully aired. I believe that they have been dealt with fairly and reasonably—particularly after the most recent remarks of the Minister on Clause 1(1)(a). Therefore, we also agree that the Bill should now pass.

Lord Sainsbury of Turville: My Lords, I commend the Bill to the House. In doing so, I would like to thank all the Bill team for their hard work, and all the noble Lords who have taken part in the detailed discussion of this apparently simple, but in fact complex, Bill. It has been a valuable exercise, and I hope that we have been able to reassure noble Lords that our objectives are common to the whole House. We will pursue this Bill with close financial controls.
	On Question, Bill passed and returned to the Commons with amendments.

Sexual Offences Bill [HL]

Lord Falconer of Thoroton: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
	Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.
	House in Committee accordingly.
	[The CHAIRMAN OF COMMITTEES in the Chair.]
	Clause 26 [Sections 18 to 22: sexual relationships which pre-date position of trust]:
	On Question, Whether Clause 26 shall stand part of the Bill?

Baroness Blatch: Clause 26 exempts from prosecution those who were in a sexual relationship immediately before a position of trust arose. It introduces an entirely new defence to a charge of abuse of trust. That defence is not present in the existing law on abuse of trust brought in by the Sexual Offences (Amendment) Act 2000. The clause creates a blanket defence to all abuse of trust offences, whether created in 2000 or under this Bill. The clause represents a reversal of Government policy.
	I shall illustrate the turnaround that there has been. I shall quote from the Home Office guidance on abuse of trust issued in 1999 in the run up to the 2000 Bill. That guidance is very firm—so firm that it grudgingly accepts a marriage exemption such as that now found in Clause 25 of the current Bill. In explaining the intention behind the 2000 Act, the guidance states:
	"There would also be a defence if the parties were married to each other before the sexual relationship takes place. As a matter of good practice, however, we would not expect those married to remain in a relationship of trust".
	In other words a teacher who wants to marry a pupil must not under any circumstances consummate the marriage until the wedding night. If they do marry the teacher should quit his job. In 1999 the Home Office was worried that a teacher could get around the Bill by marrying a pupil. Now the pendulum has swung to the other extreme. In 2003 under Clause 26 a teacher can get around the Bill by having a one night stand with a pupil.
	I quote again from the 1999 guidance,
	"any sexual relationship within a relationship of trust is unacceptable so long as the relationship of trust continues".
	The guidance states that the reason for this is,
	"A sexual relationship itself will be intrinsically unequal within a relationship of trust and is therefore unacceptable. It is also inappropriate since the 'professional' relationship of trust would be altered . . . given the inequality at the heart of a relationship of trust, the relationship of trust should be ended before any sexual relationship develops".
	That is precisely the point. It is the Government's own guidance. One cannot be in a position of trust and have a sexual relationship. Under the 2000 Act a defendant could not excuse himself by claiming that he was in a sexual relationship immediately before the position of trust arose. The Government thought that that was unacceptable, so the legislation contains no such defence. Neither should this Bill.
	Clause 26 creates a serious loophole in the abuse of trust legislation; a loophole which I believe will be exploited to thwart many prosecutions. Under the clause, to escape conviction, all an accused person would have to show was that he had a sexual relationship with his victim prior to taking up his position of trust. Abuse of trust offences by their very nature are those most likely to have a young person spring to the defence of an adult who has abused their trust. By definition, prosecutors are not arguing that force has been used by the perpetrator, in which case a charge such as rape would have been laid. Instead, the young person has ostensibly consented.
	The raison d'etre of the abuse of trust offence is that such consent is not real consent. The Government have decided that the risk to a young person of being manipulated is so great that such a relationship should be unlawful. The clause allows a defence which manipulative older persons can rely on routinely to escape prosecution. It is a defence that is much too easy to abuse. For example—a 16 year-old boy transfers to a new school. A 30-year-old female has sex with him and begins an intense relationship with the young man. The teacher is arrested for abuse of trust. She lies, claiming that their relationship started up before the boy started at the school. The boy is besotted with the teacher and agrees to back up her story. The police have to drop the case.
	Clause 26 provides a defence if there was a sexual relationship "immediately" before the position of trust arose. That could presumably start up the weekend before term starts. Clause 26 could turn a one night stand into an alibi for abuse of trust. Indeed under Clause 26 it need not even be that.
	For example—a 40 year-old male teacher starts his employment at a new secondary school on the first Monday of September. In a pub on the Saturday night before the start of term, the teacher meets a 16 year-old girl who attends the school. They get talking and the teacher realises that she is probably going to be in his A-level class. He ingratiates himself with the girl. She allows him to fondle her in a manner which is clearly sexual. After term begins, the teacher continues his relationship with the girl, who trusts him because of his position as a teacher and does not want to upset him because he is responsible for marking her work. He persuades her to have sexual intercourse with him. The girl's parents are concerned that she is out every night, and report the matter to the police. They are powerless to act, since the girl raises no complaint and the teacher argues a Clause 26 defence—that he had already had a sexual relationship with the girl before the position of trust arose.
	In the area of education, the abuse of trust offence is tied to an institution. The teacher must regularly teach at the same school attended by the young person. Therefore Clause 26 will aid those manipulative adults who change their jobs in order to be in the same school as the young person whose trust is abused. Teachers from one school often meet pupils from another. Extra-curricular activities provide plenty of opportunities for this. Pupils who take part in inter-school competitions, sporting contests, or joint field-trips will often meet teachers from other schools. Many teachers also volunteer for other non school-related youth work, such as Scouts and Brownies. That is a particular practice of paedophiles.
	It is possible that a teacher could have a sexual encounter with a 16 year-old from another school in one of those settings, relying on his position as a teacher. He would not be caught by any of the abuse of trust provisions because Clause 23(5) requires that the teacher and pupil must be at the same school. If the teacher then took a job at the child's school, he could continue the abuse of trust, free from legal sanction. He could argue that they already had a sexual relationship "immediately before" the position of trust arose.
	What about the case of a paedophile who changes his job in order to gain access to young people whom he can abuse? It is a well-established fact that paedophiles often seek to put themselves in positions of trust over young people. Clause 26 hands them on a plate a technique for gaining immunity; they need only start the abuse before the position of trust arises. They can begin the relationship in a social setting or from a position of trust that is not covered by the Bill. In our debates on the second day in Committee, it was demonstrated clearly that there was a good number of such positions of trust. The abuser can then move into a position of trust from which they can continue and even intensify the abuse with impunity.
	I shall give another example. Over a period of five years, a male social worker is assigned to help a family because of abuse of trust by a violent father. The social worker forms a relationship with an 11 year-old boy in the family, and the boy completely trusts the social worker. It is a common occurrence. After five years, the family is re-housed in a residential family centre, and the social worker takes up a job there a few months later. The police are tipped off by another member of staff that there is a sexual relationship between the social worker and the boy. The police suspect that the social worker may be a paedophile who groomed the boy for abuse over several years and took up the appointment at the family centre in order to be close to the boy, who, by this time, is 16. The social worker claims that the sexual relationship began when the boy was aged 16 and before he started his new job. He claims a Clause 26 defence, when arrested for abuse of trust. The boy supports his story. The police are powerless to act.
	Such a case is not far removed from the sort of abuse that occurred in north Wales and was exposed by the Waterhouse report. That report showed that child abusers changed their jobs in order to abuse young people. The report also showed that it was not at all unusual for 16 and 17 year-olds to be abused. Some of the abusers deliberately waited until those whom they wanted to abuse had reached 16. For example, the social worker Jacqueline Thomas groomed a boy for abuse but did not have sexual intercourse with him until he was 16. One of the most horrifically abused boys in the report, boy "B", was abused by infamous paedophile Gary Cooke only after he had reached the age of 16.
	Such examples show that the exception simply cannot be allowed to remain in the Bill. If it is thought right to criminalise abuse of trust, the law should not contain unjustified exceptions. If it is wrong for teachers to have sexual relationships with those whom they teach, a teacher must make a decision: he can maintain either the sexual relationship or his professional position. If Clause 26 remains in the Bill, a teacher who starts a sexual relationship the day after term starts will commit a criminal offence, but the one who starts it the day before will not. In the first case, such activity will be an abuse of trust with a potential five-year custodial penalty; in the second, it will be fully defensible, and there will be no case to answer.
	Clause 26 breaches the principle, which, until recently, the Government strongly endorsed, that those in positions of trust should not have a sexual relationship with those in their care. That principle should be maintained under the Bill, as under the Act. We should offer protection, in particular, to those most vulnerable to such activity. I beg to move.

Baroness Noakes: My noble friend Lady Blatch has raised some important concerns about Clause 26. I find it a difficult area. In many ways, I find it more finely balanced than my noble friend does. I can see, on the one hand, that there may be circumstances in which a relationship between a child and somebody who later acquires a position of trust is not harmful. It is difficult to see why we should make something unlawful because of a change of circumstance. However, as my noble friend pointed out, people have choices in life and could choose to resign from a position of trust or find some other way of removing themselves from such a position.
	My concern is that allowing pre-existing relationships would subtly undermine the basic prohibition created by the abuse of trust provisions. That would send the wrong message. We want the abuse of trust provisions to be strong and effective and to send a strong signal. I hope that the Government will consider the clause again.

Lord Monson: Time and time again, I find myself in agreement with the noble Baroness, Lady Blatch, on a wide variety of subjects—but not on this occasion, I am afraid.
	The point is that the relationships ante-date the assumption of a position of trust by the older person, who may, after all, be only slightly older. The allegedly naive and innocent 16 or 17 year-old could not have been swept off his or her feet at the outset by the exalted status of the older party. They would have met on level terms, so to speak. It seems cruel, on principle, for the state to break up an existing relationship for no compelling reason.

Baroness Carnegy of Lour: I listened carefully to what my noble friend Lady Blatch said. It strikes me rather strongly that the effect on a class being taught by the person with the previous relationship would be formidable. Children recognise acutely when sexual relationships exist. I tried to imagine what it would be like to be the parent of a child in a class where that was known to be going on. It would be difficult for that class to operate properly. I am not sure whether my noble friend made that point, but it is a powerful one.
	I see the point that the noble Lord, Lord Monson, has just made. It is, of course, unkind to break up a relationship in that way, but, as my noble friend said, that person does not have to teach that class. That is an important point, and the Government should think seriously about it. Educationally speaking, it would not be doing the school a good turn.

The Earl of Listowel: I shall make a brief point on the issue of trust. It must be damaging for a child to have her or his trust abused by an adult. I want to point out the wider context of the issue. As the Minister has often said, we are not here, at the moment, to address those broader issues, but we need to keep them in mind.
	We should keep in mind the fact that, often, young people who have had poor experiences—perhaps, they have been abused themselves—feel attracted to social work. They want to care for others because they identify with other children who have suffered. However, such young people may not have come to terms with their own experience and may be weak and vulnerable. They may go out to help others, without necessarily being fully equipped to do so. The Minister should bear in mind the necessity properly to train and support those working with vulnerable children who trust in them. I am not, in any way, excusing the abuse of trust, but, while we talk about punishment, we must remember our duty to support and train such workers. We must remember how poorly trained and supported staff in children's homes, for instance, have been.

Lord Falconer of Thoroton: This is an important issue, which we must consider extremely carefully. The protection of children is at the heart of the Sexual Offences Bill, and we are, as noble Lords will know, introducing several different offences to protect children from exploitative sexual acts.
	The offence of abuse of trust is designed to protect a child from abuse in circumstances in which an adult holds a position of trust or authority in relation to the child—for example, in a residential home, a detention centre or an educational establishment of any sort. The primary motivation for introducing the offence is the need to protect young people aged 16 and 17. If they are under 16, they will be protected by provisions relating to other offences. We are dealing with children who are over the age of consent but are vulnerable to having the trust that they repose in somebody manipulated to the advantage of the defendant, with a view to that defendant having a sexual relationship with them.
	As the noble Baroness, Lady Blatch, rightly said, the offence introduced in the Sexual Offences (Amendment) Act 2000 includes an exemption for any lawful sexual relationship that existed immediately before the commencement of that Act. The Act has been in place for more than two years, during which time any lawful relationship that pre-existed it will have moved out of the scope of the offence, by virtue of the fact that the younger party must now be over 18.
	This Bill provides a similar exception in Clause 27 in relation to the new positions of trust that have been incorporated into the Bill. The noble Baroness, Lady Blatch, has tabled an amendment to strike Clause 27 from the Bill, and for the reasons that I shall explain during our debate on that amendment we agree with her thinking and intend to remove the clause. We are with the noble Baroness on that point. The clause provides that if a relationship is lawful only because it began before the enactment of the Bill and continues after enactment, that should not be a defence.
	But in Clause 26 we are considering something else—a relationship between person A and a young person aged between 16 and 17 years which is lawful. The law explicitly does not intend to interfere with such a relationship and so the relationship of trust has not been manipulated in order to sustain that relationship. We must be clear where the line is drawn. I interpose at this stage to stress that it is the relationship that the Act defines as a defence, not a one-night stand, as referred to by the noble Baroness. That would not constitute a relationship. We are considering lawful relationships.
	Taking the obvious example, after the relationship has commenced the defendant begins to teach the person aged 16 to 17 years. Plainly that relationship has not been brought about by the relationship of trust; it is a perfectly lawful relationship. We have thought very carefully about this point. We believe that it would be going too far in circumstances where it is plain that iniquity has not occurred; namely, the relationship was not abused, leading to the young person aged between 16 and 17 being victimised. We consider that, overall, the provisions of Clause 26 strike the right balance between keeping interference by the state into the private lives of individuals to a minimum and maintaining maximum protection under the law for children from sexual abuse and exploitation.
	The noble Baroness is absolutely right to say that the clause introduces a new position from that taken under the Sexual Offences (Amendment) Act 2000, but I repeat that we believe that we have struck the right balance. I hope that Members of the Committee will take the same view and agree that Clause 26 should stand part of the Bill.
	An important point was raised by the noble Baroness, Lady Carnegy of Lour. The noble Baroness was right to point out that difficulties would arise in the classroom if it was known that the teacher was conducting a sexual relationship with one of the pupils. Let us assume for the purposes of the argument that there was a pre-existing sexual relationship between the teacher and the pupil, one that pre-dated the point at which the pupil came into the school. I respectfully suggest that the correct way to deal with that situation would be for the school to ensure that there was no possibility of the teacher concerned taking lessons with the particular class. The problem is not whether the criminal law should intervene, rather it is a matter of ensuring that the school is properly run by the headteacher.
	I agree also with the point made by the noble Earl, Lord Listowel. We need to ensure, as far as possible, that people who are in positions of trust are properly trained and supported.

Baroness Carnegy of Lour: Before the noble and learned Lord sits down, have the Government ascertained whether the teachers' unions have agreed to what he has stated? If they have not, a school would be put in the extremely difficult position of having to prevent teachers from taking their normal classes because a girlfriend happened to be a pupil in one of those classes.

Lord Falconer of Thoroton: I shall write to the noble Baroness about the consultation that has been undertaken with the teachers' unions. However, I am not sure whether any sensible headteacher would think it appropriate for a teacher and a member of one his classes to conduct a sexual relationship. I find it hard to believe that that would be regarded as an appropriate relationship in the context of a school.

Lord Cameron of Lochbroom: Would the noble and learned Lord describe when a position of trust arises in the circumstances mentioned by the noble Baroness, Lady Blatch? Let us consider a teacher who has just agreed a new contract with a school in which classes have not yet started. He is already a teacher at the school, but that fact is unknown to the particular girl, a pupil at the school, whom he meets in a public house just before the new term begins. In those circumstances, by virtue of his contract, one might argue that he is placed in a position of trust in relation to any person he discovers at any time thereafter to be a pupil at that school.
	I should like to be certain that the phrase in Clause 26(1),
	"before the position of trust arose",
	can be seen as being the start of a contract. I look back to Clause 23(5) which refers to person A looking after,
	"persons under 18 who are receiving full-time education at an educational institution and B is receiving full-time education at that institution".
	I hope that the point is one the noble and learned Lord can clarify. It could present difficulties in the courts as regards determining the point at which Clause 26(1) would arise, so that the teacher would not be absolved, as it were, from his sexual relationship with the pupil.

Lord Falconer of Thoroton: The noble and learned Lord, Lord Cameron, will be aware that Clause 23(5) applies where person A,
	"looks after persons under 18 who are receiving full-time education".
	He will also be aware that Clause 24(3) states:
	"A person (A) looks after another person (B) on an individual basis if—
	(a) A is regularly involved in . . . training . . . B"
	and that Clause 26(1) states that,
	"is not an offence . . . if, immediately before the position of trust arose".
	I am loath to identify the precise moment at which the relationship of trust occurs, but certainly it can start before there has been an incident of teaching. Once it has become clear that person A is going to teach or train person B on a regular basis, then potentially the point at which the position of trust was established would have arrived. I think that it would be unwise to define it more precisely than that because it would depend on the facts of each individual case.

Baroness Blatch: I think that the noble and learned Lord, Lord Cameron of Lochbroom, has made a point in his remarks. Either person A would be committing an offence, in which case he would already be in a position of trust and therefore committing an offence under the Bill or—if I modify slightly my example of the same two people—where person A applied for a position having already struck up a relationship with person B, then of course the defence under Clause 26 would apply. I am rightly chided, I think, over the way I used that particular example. However, there is a choice to be made here. My noble friend Lady Carnegy made a very pertinent point. This is something about which the teaching unions are extremely concerned. We are referring here to sixth-formers. Sixth forms in schools tend to be close communities. If one sixth-form pupil is conducting an affair with a much older school teacher, and they claim a pre-existing relationship so that they benefit from immunity under Clause 26 if it remains part of the Bill, then there is an impact on other students in the school. Simply to say that the teacher should not teach the particular girl while she remains a sixth-former in the school, but that he should teach other children, does not resolve the difficulty.
	The decent and honourable thing to do—indeed, as far as the school is concerned, it is what the teacher should do—is for the teacher to remove himself altogether from that position of trust. A choice is available to such people.
	I remind Members of the Committee that if such relationships occurred only rarely, then I would not seek to make a further point to support my case for the removal of Clause 26 from the Bill. But I refer again to the Welsh case. A network of paedophiles was operating not only in north Wales, where young children were being passed around like parcels so that people could sexually abuse them, but also all over the country. Indeed, people from my own local authority sought jobs for themselves in that part of Wales because that kind of activity was going on. People in the paedophile networks will realise that they have a tailor-made defence under the provisions of Clause 26. They will manipulate circumstances so that a relationship is struck up before the position of trust commences. They know that they will be provided with immunity from prosecution beyond that point. The Minister is absolutely right that the relationship must be tested, but I return to the Welsh case because it is the most vivid for many of us. We all remember reading that dreadful report. That case went on for many years and the repercussions are still being felt in the lives of many people. Young people in that situation are extremely vulnerable. They are desperate to be loved. They will even allow the most awful things to happen to them because somebody is taking care of them and loving them—but at the same time seriously abusing and taking advantage of them. Those are the people we want to protect.
	This does not do a disservice to people in the kind of relationship mentioned by my noble friend Lady Noakes and the noble Lord, Lord Monson. If we are about anything when we come to legislate, it should not be about giving an excuse to somebody who manipulates the system. Once Clause 26 is part of the statute, it could be manipulated by taking advantage of young, vulnerable people who will always profess to having had or being in a relationship prior to the abuse of trust position.
	If Clause 26 goes onto the statute book and allows persons to take sexual advantage of vulnerable people, paedophiles will be completely free of any kind of offence. However, I do not intend to press my opposition to Clause 26 at this stage. The noble and learned Lord has been marvellous between the last time that we met and this stage. He has listened very carefully in respect of other clauses about which I was equally concerned and responded. I shall read everything said in this debate and hope that the noble and learned Lord will do the same. If nothing changes, I shall return to this matter on Report.

Lord Monson: Does not the noble Baroness agree that persons who are attracted to 16- and 17-year-olds are not, strictly speaking, paedophiles?

Baroness Blatch: The case that I have been making over and over again is that persons engineer sexual relationships with people much younger than 16—so that at 16, as in the Welsh case and one of the examples that I gave, the offender almost has a free rein and can be free of committing an offence.

Clause 26 agreed to.
	Clause 27 [Sections 18 to 22: existing sexual relationships]:
	On Question, Whether Clause 27 shall stand part of the Bill?

Baroness Blatch: I was delighted to see the name of the noble and learned Lord associated with the opposition to Clause 27 and am mightily relieved that it will not stand part of the Bill.

Lord Monson: I realise that I am ploughing a lone furrow, in that I think that Clause 27 strikes the right balance as it stands and should not be deleted. That was presumably the view of the White Paper Setting the Boundaries and of the other documents mentioned in the Explanatory Notes. No doubt the noble and learned Lord will correct me if I am mistaken. I confess that I cannot remember what those different documents said about the clause.
	We have been hearing from the media generally for months, if not years, and heard in earlier debates that a higher and higher proportion of young people are becoming sexually active at 13 or even earlier. I think that is deplorable, but there does not seem to be anything that anybody can do about it.
	At the same time and perhaps consequentially, we are told that 16 and 17 year-olds are, to all intents and purposes, adults and should therefore be given the vote at 16. In this House, that proposal came from Conservative Back-Benchers but received support from all parts of the House—and many letters in the press in recent weeks have supported that idea. The Government seem to agree that 16 or 17 year-olds are de facto adults, as they used the Parliament Act to ensure that 16 and 17 year-olds of both sexes can now be legally sodomised by anyone not in a position of trust. That was against the wishes of the overwhelming majority of your Lordships on both sides of the House and the public—and against the wishes of a number of responsible homosexuals. That, despite the physical dangers involved and described so graphically by the noble Lord, Lord McColl, with his enormous medical expertise.
	How strange then to demand up to five years imprisonment for someone in a position of trust—not a position of authority because an employer, office manager or foreman can get away with anything under the Bill—who perhaps merely kisses the younger person, as he or she may have been doing week after week or month after month prior to the Bill coming into force.
	I realise that nothing that I say will change the Government's mind at this stage, but I thought that was worth saying none the less.

Lord Falconer of Thoroton: I will briefly explain why we are not supporting Clause 27 anymore, which is entirely in line with my remarks about Clause 26. The abuse of trust offences are designed to protect children from being manipulated by the relationship of trust into what are ostensibly consensual relationships in circumstances where the genuine nature of the relationship must be in doubt.
	As the rationale for these offences is to protect young people from being manipulated into such relationships, it follows that we should not make it a defence to a continuing sexual relationship that the manipulation occurred before it became unlawful. There is an option; namely, that the relationship of trust can be brought to an end. It is unlike Clause 26, where the start of the relationship was not the product of the abuse of trust relationship—whereas under Clause 27, the relationship would have been the product of the abuse of trust.
	If Clause 27 stands part, the only reason for it not being unlawful would be if the relationship started before the Bill became law. It is very difficult to justify continuing the relationship after it becomes unlawful simply because it started before. For that reason, my name is added to that of the noble Baroness and we agree that Clause 27 should no longer stand part of the Bill.
	My name also appears with that of the noble Baroness in relation to Clauses 32 and 51 stand part. Those deal with situations where a relationship or position of dominance is manipulated to start a relationship. That would have occurred before the Bill became law but continued after. The fact that the manipulation started before should not be justification for it continuing after the Bill becomes law. When we come to Clauses 32 and 51 stand part, I hope that we shall be able to deal with them as quickly as Clause 27.

Lord Monson: Before the Minister sits down, will he remind the Committee of the recommendations made in Setting the Boundaries and Part 1 of the Sex Offenders Act 1997 in respect of this particular clause?

Lord Falconer of Thoroton: The document Setting the Boundaries suggested that there should be a defence if a relationship started before and continued after. But the logic of saying that one acted in a way that would have been regarded as criminal and continued to do so after the law is enacted is difficult to defend.

Clause 27 disagreed to.
	Clause 28 [Sexual activity with a child family member]:

Baroness Blatch: moved Amendment No. 172:
	Page 13, line 15, after "offence" insert "of incest"

Baroness Blatch: I moved amendments to the Sexual Offences (Amendment) Bill to extend the scope of the existing law covering abuse within the family. Although the word "incest" will not be used in the new offence in Clauses 28 to 32, I am very pleased that the scope of the protection to cover abuse within the family has been significantly widened in the way that I proposed some three years ago. For example, step-parents are included and so is abuse by a family member of the same sex.
	The Government have in many respects produced a better law of incest than currently exists, re-implementing many aspects of English law on incest that were removed when the Ecclesiastical Courts lost their jurisdiction. But in doing so, the Government are dropping the title "incest" and so are weakening public understanding of the offence and recognition of its seriousness.
	Existing law has three omissions. It does not cover sexual activity between family members of the same sex; oral sex or sexual acts falling short of penetration; and step-parents, step-siblings, uncles and aunts. Where a child is involved, Clauses 28 and 29 remedy those loopholes and form a better law of incest than we have at the moment. However, the name of the offence is changed in the title from incest to sexual activity with a child family member. Clauses 68 and 69 largely restate but rename the existing law of incest for adults. For the first time, same sex activity and oral sex are also covered, but unlike the offences protecting children, Clauses 68 and 69 do not include sexual activities falling short of penetration. Nor do they bring step-parents, step-siblings, uncles and aunts within the scope of the law.
	Clauses 28 to 32, 68 and 69 create a problem—although I know that Clause 32 will now not stand part of the Bill—by removing the word "incest" from the statute book. Incest is a term that is very well understood among the public; it recognises the particular nature and seriousness of the offence. There is all the difference in the world between the expression "non-consensual sex" and "rape". To say you are a victim of rape has a clear meaning—everyone knows what it means. To say you are a victim of non-consensual sex can never convey the same degree of seriousness. In the same way, there is all the difference in the world between "sexual activity with a child family member" and "incest".
	Children who are victims of incest suffer a particularly grievous form of child abuse. In addition to the abuse, with all that that can mean, there is the violation of the close family relationship. This seriously handicaps the child's ability to trust other adults in future. The incest law exists to help preserve the sanctity of family ties.
	The Government's White Paper said:
	"The balance of power within the family and the close and trusting relationships that exist make children particularly vulnerable to abuse within its environment".
	I agree with that analysis. Incest is the greatest abuse of trust; it violates the assumed security of the family.
	The word "incest" graphically captures the idea of impurity. This is the meaning of the Latin word "incestus" from which the English word derives. It encapsulates the desecration of a family relationship by the most appalling abuse of trust.
	The overall section title in the Bill does not say "incest offences" but "familial child sex offences". The word "familial" lightens the gravity of the matter. It is an obscure medical term of comparatively recent origin, more common in the US than in Britain. In contrast, "incest" is a longstanding concept—it can be found in documents dating back to the time of Magna Carta. Its meaning is widely and immediately understood today. Anyone who comes across the term "incest" in a news report, book or film knows exactly what it means.
	The title of Clause 28 simply reads:
	"Sexual activity with a child family member".
	This is striking only in its neutrality. As a term, it does not possess the same degree of seriousness as the term "incest" and carries little stigma for the offender.
	I understand that the sex offences review believed that the term "incest" should be removed as it might imply that the innocent party was complicit in the offence. If that was its aim, it has comprehensively failed. The descriptions "sexual activity with a child family member" or even "sex with an adult relative", the title of Clause 68, do not have any connotation that consent was withheld. Removing the concept of incest from the law removes from the name of the crime any concept of guilt. Ultimately, the only person who can benefit is the one who has committed the offence. Dropping the word "incest" makes the severity of what the victim has suffered appear much less serious.
	I cannot help feeling that "incest" has been removed as a token gesture to political correctness. No doubt the Government will claim that they are merely tidying up or modernising the law. Whatever the case, I am afraid that this renaming downgrades and, I believe, sanitises the offence.
	As I mentioned a moment ago, a plain contrast is that the Bill retains "rape" as an offence. Many noble Lords will be more than aware of this following lengthy debates earlier in Committee. Rape will still be called "rape". The Government have not proposed, so far as I am aware, to replace "rape" with an offence of "non-consensual sexual activity". There are moves from some activists in this country and in the United States to rename paedophilia "intergenerational sex". Will that be next? I sincerely hope not.
	In defence of the name change in the Bill, it may be argued that the word "incest" should be used only to cover blood ties. I understand that argument, although I do not agree with it.
	As brought in by the Government, the Bill rightly prohibits sexual activity between uncles and nieces. This relationship of affinity is also prohibited in the marriage law. Incest is the right description for this offence. In a real life case, most people who heard of it would immediately think that incest had taken place, not a "familial child sex offence".
	One simple definition of incest is sexual intercourse between close relatives, the definition given by the Shorter Oxford English Dictionary. A sexual relationship between close relatives is commonly known as incest. The Bill defines the close relationships covered in Clauses 28 to 32 as "family". If these relationships are close enough to be defined as "family", they are also close enough to be defined as "incest".
	The Government's proposals in this area are almost all found in the recommendations of the sexual offences review, which reported in July 2000. The review recommended the removal of "incest" from the law. However, one factor in its decision seems to have been its belief that prosecutions under the existing law were declining. It asserted that the number of crimes of incest tried in the magistrates' courts in 1997 was only one seventh of the number in 1987. There is an elementary error here. The review seems to have forgotten that most cases of incest are tried in the Crown Court. It was therefore incorrect to assert that there are few cases of incest each year. In fact, in recent years, there have been around 100 cases every year, not 26, as stated in the review. This is comparable to the number of perjury crimes reported each year, or to the incidences of unlawful sexual activity with a girl under the age of 13.
	I repeat here that the sexual offences review's most positive proposal in relation to this offence was the widening of the relationships covered. The review drew attention, for example, to research evidence showing the high incidence of uncles involved in sexual abuse. As the noble Lord, Lord Monson, said on 13th February 2003 at Second Reading, incest is a taboo in all cultures and religions. The distinguished American sociologist, Talcott Parsons, argued that,
	"the incest taboo is a universal of human societies".
	The Government are restoring to the English law on incest categories of close relationships which were covered by our law for centuries. Under the Bill, a wider range of relationships is covered by the offence. The pattern ultimately derives from the Judaeo-Christian tradition as recorded in the Bible, which covers step-parents, step-siblings, uncles and aunts.
	"Incest" will remain in statute for Scotland and Northern Ireland. If the term can be retained and understood there, why can it not be the same in England and Wales?
	Clauses 68 and 69 relate to incestuous activity between adults. Here, too, it should be recognised that a serious offence has been committed of which society strongly disapproves. This preserves the universal pattern of the family for all ages.
	The sexual offences review supported the retention of such a law for the whole family. It noted that most cases of incest between adults had begun when one party was a child and represented,
	"a long-term abuse of power".
	The review concluded,
	"that society may properly apply standards through the criminal law that are intended to protect the family as an institution as well as individuals from abuse".
	Finally, I strongly support the effect of Clauses 28, 29, 68 and 69, but not the name. The word "incest" is striking in its immediate gravity. The alternatives offered by the Government are vague and vapid. They serve only to detract from the seriousness of the offence and, in that, can only aid its perpetrators. If my amendments are accepted, the headings in the Bill will be changed to include incest in the name of the offence. I beg to move.

Lord Thomas of Gresford: The Committee will recall my amendments to the earlier clauses in the Bill when I objected to the use of the bare word "rape" for purely practical reasons that I hope the noble Baroness, Lady Blatch, will understand. It is my view, from experience, that one of the reasons for low conviction rates for rape is the use of that word. Juries find it a word that connotes something very serious, that could lead to life imprisonment, while they are dealing with a degree of human relationships that may not be serious. Consequently, they do not convict.
	When it comes to incest, the noble Baroness paints a picture of a horrible, disgusting crime—and, indeed, it can be—where a father manipulates his young children and has sexual intercourse with them. My experience of incest is that it occurs between very inadequate people. For example, it occurs between children or young adults who have never had any moral code taught them and who do not understand the stigma which is attached to relationships between siblings in that way. That is one example. Another quite frequent example is where, for some reason, the mother of the family is incapacitated, perhaps by illness or something of that nature, and the eldest daughter develops a relationship almost of the wife and mother in that family and performs the functions of both looking after the family home and also being a partner to the husband. They are the kinds of cases which come to court and to which the word "incest" is attached.
	There are all kinds of degrees of seriousness of behaviour encapsulated in the human condition. It is quite right for the Government to get away from the old phrases which have connotations around them. The Government have taken away buggery, bestiality and incest. It is my view that the Bill would be greatly improved if the Government took away the word "rape" and recognised that there are very serious cases of rape and less serious cases.

Lord Monson: I would like to be able to support the noble Baroness, Lady Blatch, this time, but I cannot do so. She was kind enough to refer to my Second Reading speech in which, among other things, I suggested that it was a shame that the Government seemed determined to strike the word "incest" from the statute book. It is an ancient English word found in identical or near-identical form in a number of other European languages. More importantly, it is well understood by the public at large.
	I submit that rightly or wrongly the public at large associate incest with penetration of some sort and not mere touching. I believe that they would be confused if it were extended to cover forms of sexual activity other than the most serious. Although I am strongly in favour of retaining the word "incest" for the most serious forms of sexual activity between family members, I do not believe that it would be quite right to extend it to mere touching.

Lord Falconer of Thoroton: The noble Baroness, Lady Blatch, rightly describes the effect of the new provisions in the clause and the way in which it extends what had been the previous position as regards family sexual relationships. It expands their number and the sorts of conduct which are covered. It is based on the proposition that the family unit is a place where children should be able to feel safe and protected. However, because of the balance of power within the family unit and the close and trusting relationships which exist within it, the family creates opportunity for exploitation and abuse and within such a unit that can occur between people who are not simply blood relations.
	In the light of that change we believe that it is wholly inappropriate to continue to use the word "incest". We believe that it goes further. There is a very short passage in Setting the Boundaries 2000 which I should like to read. It states:
	"After careful consideration, we decided that the word incest, although well understood, was perhaps no longer the right one to use in the context of delivering protection in the family. It is generally understood as an offence of blood relations, and carries a very heavy burden, not only for the offender but also for the victim/survivor who can be seen as complicit. It seems inappropriate for the informal and temporary family arrangements that can be the cause of particular concern, and are well outside the present law of incest".
	We believe that is broadly right and that the time has come no longer to use the word. In the light of what I have said I invite the noble Baroness to withdraw her amendment.

Baroness Blatch: I believe that I dealt with the final point which the noble and learned Lord made about deeming complicity. The new terminology does not resolve that matter, which I dealt with in some detail.
	The noble Lord, Lord Thomas of Gresford, was consistent in that he was concerned about the word "rape" as well. Whatever the activity is, if the degree of incest is sufficient to fall within the clauses in the early part of the Bill, then it is serious. It is certainly serious for the child. It links with the point made by the noble Lord, Lord Monson, as regards touching.
	I have the same reservations as the noble Lord about that. For a long time I have supported the very difficult situation of a step-parent who has become a new member of a family with young children. It has always been my view that all members of most families touch their children and each other all the time and very often in a very affectionate way. It certainly happens in my family where one cuddles up on the sofa, watches television, reads stories and where children crawl into bed with their parents and even with step-parents. But we are not talking about such matters.
	If it comes to the attention of the prosecution services that there is sufficient evidence that the degree of touching is such that it falls under the clauses in the Bill, then it is very serious for the child. There needs to be some protection in that regard. I believe that there is a commonality of understanding about the word "incest" and any child or member of a family who is violated by another member of the family, particularly children who are violated by parents and/or uncles and aunts. The evidence shows that there are very common occurrences of the uncle abusing the child. I believe that "incest" is the appropriate word. I am sorry that my amendment has not received support throughout the Chamber. For the moment I shall reflect on what has been said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford: moved Amendment No. 173:
	Page 13, line 21, after first "he" insert "reasonably"

Lord Thomas of Gresford: When I tabled this amendment my purpose was to try to tidy up Clause 28 and to try to deal with the shifting burdens of proof that are contained within subsection (2). After the facts have been established under subsection (1) the burden shifted to the defendant to prove that he believed that the other person was 18 or over and then back to the prosecution to establish that the belief was unreasonable. We had discussion about a very similar matter at an earlier stage of the Committee.
	Looking at the matter again, I am even more concerned about Clauses 28 and 29 when comparing them with Clauses 9 and 11, which we have already debated. Sexual activity with a child family member is concerned with a person who is under 18. If the person were under 16, presumably Clause 9 would apply. There would be no question of consent being given by the child under 16. Again, we are really dealing with 16 to 18-year olds where the other party to the sexual activity may very well consent to what is taking place, but that does not stop it from being an offence.
	I do not understand why in Clause 9 it is for the prosecution to prove that A does not reasonably believe that B is 16 or over, but in Clause 28 the burden of proof shifts twice for the defendant to prove that he believed the other person was 18 or over and, as I have already said, for the prosecution to try to rebut that.
	Why must there be a change of that nature? If one compares Clause 29 with Clause 11, we see that the same thing happens. In Clause 11, it is for the prosecution to prove that,
	"B is under 16 and A does not reasonably believe that B is 16 or over".
	In Clause 29, the burden of proof changes to the defendant. It is for the defendant to prove,
	"that he believed that the other person was 18 or over".
	I want an explanation for that.
	It is not sufficient to say, as the noble and learned Lord said when we earlier discussed the issue, that my amendment, which would have made it,
	"reasonably believed that the other person was 18 or over",
	in subsection (2), would offend the European convention. I have looked at the European convention, and I see nothing in that or in case law that supports that explanation.
	The other matter that concerns me is the level of sentencing. In subsection (5), for a person over 18 the maximum sentence is 14 years. That accords with Clause 9, when a person is under 16. But under Clause 28(6), unless subsection (5) applies—that is, unless the person is over 18—
	"a person guilty of an offence under this section"—
	in other words, a person under 18—
	"is liable . . . on summary conviction . . . to . . . 6 months",
	and,
	"on conviction on indictment, to . . . 5 years".
	The position that that postulates is that the other family member who is the defendant is under 18, dealing with someone who is between 16 and 18. The defendant could be 12, 13 or 14—in other words, he could be younger than the person that the clause aims to protect. That person, under subsection (6), seems to be open to conviction on indictment of up to five years. I do not understand the thinking behind that, but perhaps I am muddled and have not understood it fully.
	One may compare that provision with the clauses that we have discussed—Clauses 68 and 69, which deal with sex with an adult relative—and consider the level of sentencing. In Clauses 68 and 69, the sentence is six months or two years, whether one is the person doing the penetration or the person receiving the penetration. In Clause 28, which deals with sexual activity with a child family member, there is a sentence of 14 years and, for a person under 18, five years. Why are there such discrepancies? Why do sexual assault, with which Clause 28 deals, or inciting sexual assault, with which Clause 29 deals, carry such enormous sentences of imprisonment as compared with what the noble Baroness, Lady Blatch, would call the incest provisions in Clauses 68 and 69? A lot of explaining needs to be done about the two clauses, and I look forward to hearing from the Minister. I beg to move.

Baroness Noakes: We on these Benches associate ourselves with the concerns expressed by the noble Lord, Lord Thomas of Gresford, in relation to the shifting burden of proof. We discussed that in almost the same terms in relation to the abuse of trust provisions in our previous Committee day, and drew the distinction between the drafting of those clauses and the sexual offences with children clauses—Clauses 9 to 14. We do not understand that difference, and hope that we will get an explanation or that the noble and learned Lord will consider the matter again.

Lord Falconer of Thoroton: The noble Lord, Lord Thomas, raised two separate points. First, he asked why we place all the burden of proof on the prosecution in relation to Clause 9 and yet place part of the burden in relation to belief about age under Clause 28. Secondly, he asked why, even if the first question is answered, is there a shifting burden dividing it in two?
	The noble Lord asked a separate wodge of questions about sentencing. He asked why the maximum penalty under Clause 69 was two years, whereas the maximum penalty under Clause 28 was two years—

Lord Thomas of Gresford: Fourteen and five years.

Lord Falconer of Thoroton: Exactly.
	In relation to the first question, the reason for the difference in overall approach between the Clause 9 and 11 offence and the Clause 28 and following offences is that in Clause 9 the defendant and the child may not know each other. In Clause 28 and associated offences, there is a familial relationship, so it is reasonable to say that the defendant should have the burden of saying, "I did not know or I did not believe that the child fell below the relevant age".
	The second question concerned the burden of proof. When there is a burden on the defendant to set out what his or her knowledge was about the age, why shift the burden of reasonableness back to the prosecution? The European convention does not specifically refer to the question, but our view is that as a matter of law the convention in the circumstances of this offence would not uphold a reverse burden on the question of reasonableness, when it is an objective matter that a jury has to determine, and not something peculiarly in the knowledge of the defendant, such as the knowledge of age. It is purely because of that legal issue that the two have been separated.
	As for the discrepancy between the sentencing for Clause 28 and for Clauses 68 and 69, that is accounted for specifically by reference to the age of the victim. For Clause 28 it is under 18 and for Clauses 68 and 69 it is over 18. Under Clause 28, when the defendant is very young, one would expect prosecutorial discretion to be used. The distinction is made because of the age of the victim.

Lord Thomas of Gresford: I do not see the need to shift the burden of proof to the defendant under Clauses 28 and 29, in the way that the noble and learned Lord describes. If the burden of proof remains with the prosecution, it is still for the defendant to raise the issue and give evidence that he did not believe, otherwise it is not an issue in the case. It is for the defendant to have the evidential burden, in the sense that he has to raise the issue by giving evidence about it. However, it is only right and fair that the prosecution should retain the overall burden of proof so that the jury is sure that the defendant did not have that belief. I shall return to that matter.
	As for sentencing, Clause 69 is where a person over 16 receives penetration from a family member, perhaps with consent. That carries a maximum of two years imprisonment. In Clause 28, the defendant may be under 18 and be facing five years imprisonment. I do not see how one can marry those two levels of sentencing. It seems totally ridiculous that sexual touching should carry such a heavy penalty, whereas giving or receiving penetration from a family member with consent—all these offences are postulated as being with consent—should have the levels of sentencing to which I referred.
	To follow the noble Baroness, Lady Blatch, there is a degree of political correctness here. Consensual intercourse between adult family members—people over 16—is regarded as not too serious, but when the word "child" is put into the offence, the sentence must immediately be more than doubled. That is offensive, and I shall return to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 174 and 175 not moved.]

Lord Falconer of Thoroton: moved Amendments Nos. 176 and 177:
	Page 13, line 22, after "proved" insert "(a)"
	Page 13, line 22, at end insert ", or
	(b) that the other person was under 13."
	On Question, amendments agreed to.
	[Amendments Nos. 178 to 182 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 183:
	Page 13, line 31, leave out subsection (4).
	On Question, amendment agreed to.

Baroness Noakes: moved Amendment No. 184:
	Page 13, line 37, leave out paragraph (a).

Baroness Noakes: In moving Amendment No. 184 I shall also speak to Amendment No. 198, both of which are probing amendments related to the use of family proceedings rather than indictment for the familial child sex offences in Clauses 28 and 29. Under those clauses, sexual activity with a child family member under 18 or inciting a child family member to sexual activity generally attracts a 14-year sentence except where the defendant is under 18, where sentence is either five years on conviction on indictment or six months or a fine on summary conviction. My amendments are designed to elicit the Government's thinking on how they see these clauses being used for those aged 17 or less and how they see the distinctions between summary proceedings and proceedings by indictment.
	I tabled a similar amendment to Clause 14 which carries a similar sentence level in relation to under 18s who are involved in child sex offences under Clause 14, but I think that the Minister perhaps forgot to reply to it because I could not find that reply in Hansard—no doubt because our debate on Clause 14 ranged much wider than the matter of indictment and summary conviction. As with Clause 14, however, we are talking here about offences by young people, mainly 16 and 17 year-olds, against children. All of the points made when we debated Clause 14 are relevant here. The noble Baronesses, Lady Walmsley and Lady Jay, and the noble Earl, Lord Listowel—all of whom are in their place—raised points about children needing to be dealt with outside the criminal justice system. The force of all of those points is at least as great when considering the type of young people covered by Clauses 28 and 29.
	I am well aware that there is a spectrum in relation to the gravity of offences involving children and that discretion will be used. However, I hope that the noble and learned Lord will say what will drive the decision on whether to pursue a prosecution. I believe that the Crown Prosecution Service will pursue a prosecution only when it is the only way in which to ensure that the child is treated properly and/or to protect other children. As I understand it, the criminal justice system will be used only when other remedies would not be effective. So we are talking about very serious child sex offence cases that should be left to non-criminal justice remedies.
	If that is so, and if we have concluded that an offence is so serious that there must be a prosecution to ensure that the young person is dealt with or that children are protected, would we ever contemplate using summary proceedings which could result in a mere fine? Do we expect the offences in these clauses to be used only for the more serious type of familial child sex offences, when the other mechanisms—child protection, social care, medical care—cannot exclusively be used? If that is so, how could we contemplate using the summary proceedings with the minor penalties that they allow? I beg to move.

Lord Thomas of Gresford: I have already made my comments on the wide range of human behaviour and I shall not repeat them. However, the effect of Amendment No. 184 is on people who are under 18. It removes from them the possibility of appearing before a magistrates' court and receiving a summary conviction, simply for consensual touching of a family member who is also under 18. If I could be assured that forms of treatment and the measures to which the noble Baroness, Lady Noakes, and my noble friend Lady Walmsley referred were in place, perhaps it would be right to make the offence so serious that it could be dealt with only on indictment. However, until those measures are in place, and they are not at the moment, I think that one has to leave it open for those under 18 to be dealt with properly in the magistrates' court.

Lord Falconer of Thoroton: The noble Baroness, Lady Noakes, has refined her argument. She agrees that a wide spectrum of offending can occur. We all agree that much of that spectrum will necessarily entail a trial in the Crown Court. She then posed a question: if only very serious cases should be brought, should not the option of a summary case be excluded? I think that that would be unwise. Surely the right course is to let the prosecutorial authorities have the full range of options in dealing with what can happen in sexual situations and allow them to make their judgment on that basis. It would be unwise and much too difficult to make the guidelines so clear that although one thought that the criminal law should intervene, it could do so only in a way in which it could make a judgment on the seriousness of the case.
	The problem arises only in relation to over 18s. If the defendant were under 18, he would start off in the youth court, which could decide whether the case was so grave that it had to go to the Crown Court. The noble Baroness said that one could not contemplate a situation in which a fine would be appropriate. One can be fined in the Crown Court.

Baroness Noakes: I thank the Minister for that reply. One could be fined in the Crown Court, but not for offences under Clauses 28 and 29—

Lord Falconer of Thoroton: No.

Baroness Noakes: Would they if on indictment?

Lord Falconer of Thoroton: Yes.

Baroness Noakes: I stand corrected. As the noble and learned Lord will know, my legal knowledge is rusty. I am still concerned that in dealing with young people we are retaining a range of criminal justice measures, when we should be focusing on non-criminal justice measures and simply retaining backstops for dealing with those children. The issue has been raised before but we have not had a satisfactory answer. Those arrangements are not in place, and that is where I think that the policy efforts need to be concentrated. Although I accept that those issues are difficult to accommodate in debates on this Bill, I hope that the Minister will accept the concerns that many noble Lords share about this particular aspect of offending behaviour. We are debating the criminal justice aspects of the issue, but that should not be our predominant concern. We should be looking to many other remedies. However, in the light of what the Minister said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 185 and 186 not moved.]
	Clause 28, as amended, agreed to.
	Clause 29 [Inciting a child family member to engage in sexual activity]:
	[Amendments Nos. 187 to 196 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 197:
	Page 14, line 19, leave out from beginning to "applies" in line 22 and insert—
	"(4) A person guilty of an offence under this section, if he was aged 18 or over and the other person was under 13 at the time of the offence, and the activity incited involved—
	(a) penetration of B's anus or vagina with a part of A's body or anything else,
	(b) penetration of B's mouth with A's penis,
	(c) penetration of A's anus or vagina with a part of B's body, or
	(d) penetration of A's mouth with B's penis,
	is liable, on conviction on indictment, to imprisonment for life.
	(4A) Unless subsection (4) applies, a person guilty of an offence under this section, if he was aged 18 or over at the time of the offence, is liable on conviction on indictment to imprisonment for a term not exceeding 14 years.
	(5) Unless subsection (4) or (4A)"

Lord Falconer of Thoroton: Amendment No. 197 raises the maximum penalty from 14 years to life for an adult aged 18 or over who incites a child family member aged under 13 to engage in penetrative sexual activity. Where the child family member is over this age or the activity incited is not penetrative, the maximum penalty will remain at 14 years. Where the incitement is carried out by a family member aged under 18 the penalty will remain at five years. Inciting a child aged under 13 to engage in sexual activity is in itself a serious offence. When the person who does that is a member of the child's family or household the betrayal of the child's trust is greater. Moreover, Clause 29 as drafted does not differentiate between victims aged under 13 or over; or between adults who incite a child family member to sexual kissing or to sexual intercourse.
	The penalty of incitement needs to be comparable with the penalty for the most serious behaviour that might be incited; that is, sexual intercourse. The amendment provides for this differentiation which marks the most serious behaviour and the particular vulnerability of children aged under 13. I beg to move.

On Question, amendment agreed to.
	[Amendments Nos. 198 to 200 not moved.]
	Clause 29, as amended, agreed to.

Lord Bassam of Brighton: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Iraq

Baroness Symons of Vernham Dean: My Lords, with the leave of the House I shall now repeat a Statement being made by my right honourable friend the Foreign Secretary in another place on Iraq.
	"With permission, Mr Speaker, I should like to make a Statement about the situation in Iraq.
	"I will deal in a moment with the post-conflict arrangements. Let me start with the military situation. All right honourable and honourable Members will have followed the extraordinary events of the past four days as coalition forces entered Basra and then Baghdad. We can all share the new sense of hope so evident on the faces of ordinary Iraqis who are now tasting freedom, many of them for the first time in their lives.
	"I know that the whole House will join me in paying tribute to the courage shown by the men and women of our Armed Forces and those of the United States, and their compassion in dealing with the civilian population. Some of our service personnel and some of the United States service personnel have made the ultimate sacrifice to help remove the threat from Saddam's regime and to secure Iraq's liberation. We mourn them and send our deepest condolences to their families and comrades in arms.
	"I also want to express my profound sorrow at the death of innocent Iraqi civilians as well as a number of international journalists. This is, I am afraid, a tragic consequence of military conflict, despite all the care taken by coalition military forces to keep casualties to a minimum.
	"Given what we have seen and now know, there is understandable euphoria at the progress made in recent days. But we must recognise that the military task is far from complete. There are still large areas of Iraq not under coalition control, and units of the Iraqi armed forces still engaged in combat. After years of brutal repression, we have inevitably seen excesses and lawlessness as the old regime collapses. Coalition military forces will be doing all they can to provide a secure environment for the Iraqi people.
	"For all of the difficulties which may lie ahead, we are without question at the start of a new and much better chapter in Iraq's history. As our control extends, still more of the dark secrets of Saddam's regime are being revealed. Two days ago, ITN's Bill Neely gained entry to Saddam's secret police building in Basra. In graphic detail, a former inmate, Hameed Fatil, described how he was tortured along with his two brothers. Hameed was the lucky one. His two brothers were executed, and Hameed re-enacted their ordeal. There were no TV cameras in Saddam's torture chambers. But there are now; and the truth which they reveal is shocking.
	"As for Iraq's programmes to develop chemical and biological weapons, we know that they existed, and in 173 pages of damning detail the weapons inspectors have spelled out all the questions the Iraqi regime had failed systematically to answer. We will now be seeking those answers. We pledged to rid Iraq of these weapons and we stand by that commitment.
	"The rapid course of events made all the more timely the discussions on Monday and Tuesday at Hillsborough between President Bush and my right honourable friend the Prime Minister. These were dominated by issues related to post-conflict Iraq. Copies of the joint declaration issued by the two leaders have been placed in the Library of the House.
	"Our immediate priority is to ensure the delivery of food, medicine and humanitarian assistance to the people of Iraq. My right honourable friend the International Development Secretary will be making a Statement on this shortly. But, in brief, British forces are already heavily engaged in the provision of humanitarian assistance and organisation of basic services in the areas of the south we control. As the coalition brings security to more of Iraq's territory, so the flow of assistance will increase. We are actively looking at sending police advisers to Basra to assist UK forces as soon as possible.
	"But our responsibilities to the people of Iraq go well beyond questions of immediate humanitarian relief. For a generation Iraqi people were starved of information both about developments in their own country and in the wider world. But those days when they had to labour under the lies spread by Saddam's propaganda machine are now at an end. I am pleased to announce that a new Arabic television service, Towards Freedom, is being launched in Iraq today with opening statements from my right honourable friend the Prime Minister and President Bush.
	"A major subject of discussion at Hillsborough was how best to help the people of Iraq build a stable and prosperous country living in peace with their neighbours. The Hillsborough declaration emphasised that the United Nations has a 'vital role' to play in the reconstruction of Iraq. The United Kingdom and United States plan to seek the adoption of new United Nations Security Council resolutions which would affirm Iraq's territorial integrity, ensure rapid delivery of humanitarian relief and endorse an appropriate post-conflict administration for Iraq. In that context, we welcomed the appointment by UN Secretary General Kofi Annan of a special adviser to work on this range of issues.
	"At Hillsborough we reaffirmed our commitment to protect Iraq's oil and other natural resources, as the patrimony of the people of Iraq, which should be used for their benefit, and for their benefit alone.
	"Active discussions are under way among members of the Security Council to prepare the ground for these further resolutions. In addition to participating in the Hillsborough discussions, I have myself travelled to Berlin, Brussels, Paris and Madrid for consultations in the past week with Secretary Powell and the foreign ministers of Germany, Russia, France and Spain and of our other NATO and EU colleagues.
	"It is our guiding principle that as soon as possible Iraq should be governed by the Iraqi people themselves. We therefore support the early formation of an Iraqi interim authority which progressively will assume the functions of government. The coalition will need to work with the UN in establishing this body. As an initial step, I welcome the initiative taken by British military commanders in the south of Iraq to bring together local tribal leaders. I envisage at the right moment a national conference bringing together credible representatives from all parts of Iraqi society to agree on the establishment of the interim authority.
	"Iraq's neighbours too have important interests at stake. They, like us, want to see a stable and prosperous Iraq living at peace in its region. Many of them have given valuable support to the military coalition. All will have an important contribution to make in the reconstruction phase. I saw the Turkish Foreign Minister, Abdullah Gul, last week, and look forward to talking to him again shortly. I shall myself be visiting a number of Gulf states in the next few days.
	"My ministerial colleague the honourable member for North Warwickshire will shortly be visiting Syria and Iran. It is important to maintain the dialogue with both these countries. Syria and Iran now have the chance to play their part in building a better future for Iraq. I have maintained a dialogue over the past two years with the Iranian Government and in particular Foreign Minister Kharrazi covering a wide range of issues, including some which cause us concern. As for Syria, we hope that it will now take the opportunity to make a decisive break with the policies of the past and so contribute to a better future for the entire region.
	"As my right honourable friend the Prime Minister has so often emphasised, nothing would make a more significant contribution to stability in the region than a solution to the Israel/Palestinian issue. This too was a major subject of discussion at Hillsborough. The Prime Minister and President Bush looked forward to the publication of the roadmap as soon as Abu Mazen's Cabinet has been formed. President Bush made clear his commitment and that of his Administration to implementing the roadmap and to expending the same amount of energy in the search for peace as the Prime Minister has done over Northern Ireland.
	"For the Iraqi people the search for a lasting peace began yesterday. Iraq has been a country essentially at war with its neighbours and with itself for the past 24 years, its people subjected to a tyranny the full horror of which will become ever more apparent in the coming days and weeks. Twenty-three days ago, this House endorsed the Government's decision to resort to the use of force in order to remove the threat posed by Iraq's weapons of mass destruction and to bring the Iraqi people's long nightmare to an end. In committing our Armed Forces in that way, we took one of the most difficult decisions facing any democracy. But we were right to do so. Today we are well on the way to achieving the objectives we set. In doing so we have taken on new responsibilities to and for the people of Iraq. We will apply the same energy and commitment to fulfilling these as we have done to the military task".
	My Lords, that concludes the Statement.

Lord Howell of Guildford: My Lords, we are all deeply grateful to the Minister for repeating that full and helpful Statement. We warmly and closely associate ourselves with the tributes in the Statement to the Armed Forces and we express our great sadness—which is sometimes almost hard to control—at the news of the deaths or maiming of civilians and military personnel. There have been some tragic pictures that have moved us all.
	We too agree that it is too early to declare what some call a victory. I am not sure that "victory" is the right word. A success, yes, against many gloomy expert predictions that it would be impossible to control Baghdad or that it would take many months. But we must never forget that the purpose is to restore Iraq to its people. That will be the true success.
	Does the Minister agree that as soon as the shooting is finally contained, to quote a leading Arab thinker in one of this morning's papers,
	"every ounce of effort should go into helping to re-build a democratic and pluralist Iraq",
	and to defeat the cynics who say that that cannot be done? Should we not be straining every sinew to bring not just succour—and of course, humanitarian help, about which there will be a Statement later—but also dignity back to the Iraqi nation?
	Will the Minister accept—I know in this case she will—that the Prime Minister must have his full share of the credit for holding firm to his course, with support from this side but in the teeth of opposition from his own party and several other sources? Does she agree that the wooden spoon must go to the media; particularly the electronic media? Of course I recognise that there have been brave individual journalists and there have been some tragic deaths, which is to be deplored. But at the editorial level it is clear that the media lack the experience or skills to cope with such a war.
	The Daily Telegraph this morning described BBC coverage as showing "bias, inaccuracy and defeatism". Has the Minister noticed a sharp change of tone in the broadcast reporting approach to the fall of Baghdad, but only now that it has happened?
	As to the organisation of the next stage, is she concerned—I am sure that she is and that the Foreign Secretary is—about the looting and lawlessness that is breaking out? Does she think that, while our troops obviously cannot do everything—I know that they have made noble efforts—the Defence Secretary's somewhat lighthearted approach to the issue the other day in another place was a shade misjudged? What advice can we offer, with our enormous experience of Northern Ireland, on the establishment of an armed but trusted policing operation? Can NATO play a role? Or does the Minister suggest that the Arab League or the United Arab Emirates might organise a policing force to help restore law and order, without which Iraq cannot recover?
	I need to ask about the US's naming of contractors. Is it the position that while under US law preference has to be given to American contractors in the rehabilitation of Iraq, here the opposite prevails? Aid must not on any account be tied to national suppliers or contractors under our laws and European Union regulations. Will the Minister assure us that that is understood and that the problem is being addressed and not allowed to drift?
	I must also ask about oil. I had assumed, like others, that renewed oil revenues from Iraq would be available not only for food but also for reconstruction, especially if oil production could be boosted. Is it true that in practice Iraq's creditors—who are considerable in number—will all have prior claims to the oil revenues and the ownership of the oil itself; and that therefore the oil resources available for Iraq and its immediate help may be far less than hoped?
	I should also ask about Kirkuk's oil wells. Are we prepared for the fact that, if the Kurds take control as they are determined to, the Turkish authorities may say that they will find that unacceptable and may have to take action? What did the Turkish Foreign Minister say about that grim prospect?
	Can we assume that the interim authority and the military will have to govern until a new Iraqi government is formed, with the UN playing a role—variously described as "vital", "central", or whatever—but not under a UN mandate? We know the names of all the American members of the interim authority because they have been published, but the names of the senior British officials, who will be part of this authority, seem to be missing. Can the noble Baroness give us some names or send them if they are not available so as to confirm the view that this is a coalition—an international authority—not just an American one?
	Finally, and more broadly, will the noble Baroness continue, as she has assiduously done thus far, to keep us up to date on the Palestine/Israel front, on Abu Mazen's plans on building his cabinet, and on the prospects for the road map? Secondly, the noble Baroness will have heard it suggested fairly widely that the Foreign and Commonwealth Office apparently wants to mend fences with France and go back to business as usual on building a common EU foreign policy—on Iraq and, indeed, everything else. Does she accept that that would be the wrong approach? In paving the way for new UN resolutions, which the Foreign Secretary says he is doing, surely France needs to mend its fences after appearing to be neutral between Saddam and the West. Surely good Europeans, including ourselves, should now be using the situation to redesign Europe's future and its approach to the Middle East—and, indeed, the Atlantic Alliance—in ways that are no longer dominated by doggedly anti-American French and German thinking.
	As the Chinese say, every crisis is an opportunity. This country will not be forgiven if we stand paralysed by pessimism and fail to take the colossal opportunities for a better Iraq and Middle East, a better Europe, and a better transatlantic relationship, which this moment so clearly offers.

Baroness Williams of Crosby: My Lords, noble Lords on these Benches also thank the Minister for repeating the very full and detailed Statement made in another place by the Foreign Secretary. We appreciate that this is a major attempt to bring us up to date on a whole number of different areas of concern. I should like to express our congratulations on the way in which the military strategy has been conducted. I have in mind the courage and imagination of the forces in Basra, which is under British control. We hope that the final conclusion as regards the military action takes place very quickly.
	Does the Minister agree that, quite probably, sporadic military, or paramilitary, action will continue over the next few weeks? Does she also agree that we must be prepared for such action and recognise that part of winning the peace, which is now the essential challenge before us, involves being able to deal effectively with such sporadic actions? Like the noble Lord, Lord Howell, I should like the Minister to give us the most recent report on matters in northern Iraq, which create considerable concern because of what one might describe as the "race towards Kirkuk"? Can she tell us how that outcome might affect relations with Turkey?
	I have one specific question with regard to casualties of war. We share profoundly the deep sense of regret of the House about the losses to British and American forces. We also acknowledge the extraordinary courage with which they have conducted themselves. However, there have been unfortunate casualties among innocent Iraqi civilians. I shall not go into the issue of humanitarian aid at this point because that will be dealt with by a further Statement later today, but can the Minister say whether the United Kingdom can assist in getting medicines and, if possible, even expert medical help to the hospitals in Iraq that are now dealing with overwhelming numbers of casualties among civilians? Can she say whether such assistance could be expedited so that we might be seen to be immediately dealing with some of the tragic consequences of war?
	As to the issue of winning the peace, can the Minister give us further information on the present situation with regard to order on the ground, especially in the regions of Baghdad and Basra? According to the BBC lunchtime news, looting of the UNICEF headquarters, of the German Embassy, and of other sites in Baghdad, is now taking place. Can the Minister say whether it is perceived to be the responsibility of the Armed Forces, at least for the time being, to keep order, as implied by the Geneva conventions, until some form of policing can be established? In that context, we very much welcome the possibility of police advisers who would echo the thought that it is urgent to establish some sort of police help in these cities as quickly as possible, from whatever sensible and authorised source they might come. I support the noble Lord, Lord Howell of Guildford, who suggested the possibility of bringing in police from Arab countries with experience of dealing with such situations.
	With regard to the attempt to try to track down weapons of mass destruction, have the Government given thought to inviting the UN inspectors to return to Iraq? I echo the thought expressed from these Benches by my noble friend Lord Wallace of Saltaire that to persuade the world of the existence of the existence of weapons of mass destruction, it is important that they should be authenticated by a UN source. We understand that the UN inspectors are still employed by UNMOVIC. Can the Minister say whether any thought has been given to inviting the inspectors to authenticate the discoveries made by our troops, those of the United States and of other members of the coalition?
	On the question of setting up the Arabic television station, which will obviously have some difficulty in establishing its credibility, can the noble Baroness tell us the position with regard to Al Jazeera? Can she say whether the studios, which we understand came under attack by way of a military missile, are now operating? Will they be able to resume services relatively soon?
	I have two further major questions. The first, which was also raised by the noble Lord, Lord Howell of Guildford, relates to what one can only describe as the "substantial confusion" over the issue of a post-war administration of Iraq. There have been a number of recent reports, especially as regards Mr Ahmed Chalabi, with the Pentagon differing to some extent from reports from the State Department. Indeed, one has to say that Washington gives the appearance of a continuing argument between different departments of state. Can the Minister say whether the proposed summit that was to be held this weekend in Iraq has now been postponed sine die, or to another date?
	The Minister made reference to a national conference to be set up with support from the British forces in southern Iraq. Can she say under whose auspices such a national conference would be held, and what role, if any, the UN would take in such proceedings? The noble Lord, Lord Howell of Guildford, asked about the oil revenues. Can the Minister say whether existing debtors would represent the first demands made on them, or whether, as we understand from reports about the resumption of the Oil for Food programme—the basic requirements under UN Resolution 1472—the needs of Iraqi people, especially for food and medicine, would take priority over any other demands made in that respect?
	I turn to the troubling communique from the United States Administration in Washington to the Government of Israel, reported in The Times on 4th April, which suggested that the US would now be looking at the position with regard to Syria and Iran; and in particular, would be taking action to stop the development of terrorist activities in those countries. I understand that the communique specifically said "not necessarily by military means". It is obviously of great importance, but it has not been published in the UK. The Minister may be able to throw some further light on the matter.
	Finally, as regards the road map, perhaps the Minister can say whether the Sharon Government have now accepted, as the Statement implies, that once a cabinet has been established by the Palestinian Authority under the new Prime Minister, Mr Abu Mazen, that would count as the first stage having been met in terms of the continuation of the road map? Alternatively, as later reports suggest, will the process be delayed until that cabinet is "working effectively"—a rather vague phrase, which could mean either a long or a quick movement towards the next stages of the road map?
	Lastly, we on these Benches welcome the joint statement by the Foreign Secretary and M. Villepin of France. We hope that the indications of much closer co-operation in bringing humanitarian aid and insisting on the reconstruction of Iraq can, indeed, be realised.

Baroness Symons of Vernham Dean: My Lords, I thank both the noble Lord, Lord Howell of Guildford, and the noble Baroness for the tone of their responses. I join them in their tributes to our servicemen and women and those of the United States who have laid down their lives in this military conflict. Like them, I acknowledge not only the extraordinary courage of those who have participated in the military conflict but, in many ways as importantly, the compassion shown by our service people towards Iraqi civilians.
	I have little time in which to reply and I shall do my best to get through all the questions. I agree with the noble Lord that it is too soon to declare what he called "success". I direct him back to the Statement, which made clear that the military task is still far from complete. I believe that that point was also made by the noble Baroness.
	The noble Lord went on to say that when the military conflict stopped, every ounce of effort would need to be directed at construction. I agree with him. I believe that this is an enormously important issue, and it is a point to which your Lordships have returned on a number of occasions. The reconstruction of Iraq—perhaps it would be better to say the "post-Saddam construction of Iraq", because so little was done over so many years to put Iraq into proper working order—will be of real importance. I believe that the word "dignity" was a very apposite description of what we should be searching for in relation to the Iraqi people.
	I thank the noble Lord for giving my right honourable friend the Prime Minister his full share of credit. I also pay tribute to the noble Lord's Benches for the stalwart way that they have supported this military action. We have been very pleased to see that type of reaction from the Conservative Benches.
	The noble Lord talked about giving the wooden spoon to journalists. Of course, some very brave journalists have been out in Iraq. As the noble Lord acknowledged, some of those journalists lost their lives in the pursuit of truth. It is important that we do not tar all journalists with the same brush.
	I also consider it important to have seen on our television screens what the excesses of war really mean. It is important that we know what is done in our name. Those of us who have to take these terrible, heart-wrenching decisions must know the real consequences of those decisions, not only for our military personnel but for the people on the ground. What I have found most objectionable is the mixing of editorialising and reporting. Reports have not been clear. They have been editorialised to a degree that I believe many people have found unacceptable.
	Personally, I believe that some of the BBC reporting has been excellent, but some parts of it have been just plain silly. We may well have time to examine whether that has been a result of 24-hour reporting. But I emphasise to the noble Lord that the role of journalists in this type of conflict is vital, and many of them are very brave men and women.
	On the question of looting, as the Statement reported, we hope—we are considering how to arrange it—that police experts will go to the south of Iraq where Her Majesty's Government's forces are currently dominating. We have also been talking to tribal leaders in that part of Iraq to try to ensure that they offer proper leadership to young people who have undertaken some of the looting in an effort to stop it on the ground. I say to the noble Lord that the reports that we are receiving this morning from the military seem to indicate that much of the looting in Basra has subsided, although there is still cause for concern in Baghdad this morning. But I suggest to your Lordships that this is part of a fast-moving picture. When military forces enter a region, there is bound to be a period when a certain degree of lawlessness takes place.
	I turn to the question of the US and the naming of American contracts. There is a different law in the United States. In my view, we are right not to tie our aid to our trade. We have persuaded the United States not to tie their aid to their trade in the same way as they untied their aid in relation to Kosovo and other conflicts. They are now prepared to see the sub-contracts go to contractors from other parts of the world. I have already explained to your Lordships that British companies are actively involved in that.
	Of course, the oil should be for the Iraqi people. The question of debtors must be discussed, and I have already seen the question of debt cancellation crop up in papers. A number of very big debtors will have a great interest in the issue. It is a matter of open knowledge that Russia, Germany and France are among the substantial debtors, and they will no doubt take a great interest in what happens next.
	The noble Lord asked about the names of the senior British officials who are involved in ORHA. I was able to report to noble Lords yesterday that there are such officials. I understand that I am not able to reveal the names to your Lordships, but I shall do so as soon as I can. I shall seek to obtain clearance of the names, which I have in my briefing. I specifically sought to find out whether I could reveal them to your Lordships, but I am advised that at present that would not be proper. But I shall do so as soon as I am able. We shall of course keep your Lordships up to date on all these important issues.
	I have used up the 20 minutes that I understand I am allowed but I have not reached the end of the very detailed questions from the noble Baroness. However, perhaps I may try to weave those in in answering other questions.

The Lord Bishop of Portsmouth: My Lords, I am sure that the most reverend Primate the Archbishop of Canterbury, who returns even as we speak from his less high-profile but vitally important programme on interfaith dialogue, would want to associate himself with the graciousness and thoroughness of the Minister's Statement.
	Does the noble Baroness agree that it is very important that we pay tribute to members of the Armed Forces for the way that they have carried out an extremely difficult job? I believe it is true to say that we are now in an age where war of whatever kind will be debated in a way that it has never been debated before. As Bishop of a Navy city, I can say, without letting cats out of bags, that the people with whom I have had contact have truly and honestly debated whether our forces should be there, what they have carried out and what they have been ordered to do. Surely the Minister agrees that it is important that, as we think of the next stage, we should be generous in extending a measure of support to all sides in this debate.
	I want to press the Minister very gently with a second point. I shall then sit down and let others intervene. I do not believe that we should allow our relations with the UN and our severed relations with our former allies just to go by the board. I am sure the Minister will agree that it is not enough to take a rather triumphalistic view.

Baroness Symons of Vernham Dean: My Lords, I join the right reverend Prelate in the tribute that he paid to the most reverend Primate, who is returning from Qatar as we speak. We welcome him back and I thank the right reverend Prelate for the warm things that he said. I agree with him. The fact is that we are able to debate war as never before. I believe that that is right. War is a terrible thing. We must see what it entails if we are to make judgments about whether we are right to risk the lives of our own servicemen and women and whether we are right to risk the lives of those in the country where we pursue such military action.
	What I have found difficult is not so much the 24-hour coverage as the constant questioning of every decent motive. We were told that this would be a war about oil. I hope that what I have been able to say to your Lordships has demonstrated beyond peradventure that nothing could be further from the truth. It has been about weapons of mass destruction.
	I pick up a point made by the noble Baroness. Of course, we should talk with the coalition and the United Nations about the role of the inspectors. However, I say to the noble Baroness that if we find weapons of mass destruction during the course of the continuing military action, I hope that the noble Baroness and others will not question the veracity of those who make those finds. I hope we shall not find that people rush to say that, because the coalition found the weapons, somehow that veracity is undermined. I consider that to be a very important point.
	I return to the question of the United Nations. I believe that what was said yesterday at Hillsborough about the vital role of the United Nations chimes in rather well with what President Chirac said. It is important that we establish and re-establish our relationships. The noble Lord questioned whether this was the wrong approach. But I remind him that we have to work in multilateral forums. That is the nature of international relations these days. We have to work in the UN. We have a huge international programme on terrorism. We have to work through the EU. It will be vital in the WTO, and we also have to work in the G8. I hope that we shall there be working with France on some of the very important issues that we have to face in Africa.

Lord Fowler: My Lords, I congratulate the Government on the action they have taken and in particular on the determination of the Prime Minister. I pay my own tribute to the courage and bravery of our forces. About the need for a wider settlement in the Middle East, I add that in 1967 I reported the Middle East war when the Occupied Territories became the Occupied Territories; 35 years later my stepson has reported this war and is now in Baghdad. So if the House will forgive me, I shall not join in the criticism of the press and television. I endorse entirely what she says. I believe that some of the reporting has been both distinguished and courageous.
	My point is that I do not believe that we can afford remotely to waste another 35 years before we reach some fair and good settlement to the Palestine/Israel position. If we do that, the instability in the Middle East will continue and continue.

Baroness Symons of Vernham Dean: My Lords, I shall reply briefly to that last point. Her Majesty's Government agree whole-heartedly with the sentiments noble Lords have expressed about the enormous amount of effort that has gone into the Middle East plans, to the quartet and to the roadmap. We are very pleased that this week there was the Statement from my right honourable friend the Prime Minister and the President of the United States which endorsed that roadmap and gave a commitment to implement it when it is published, which we hope will be after Abu Mazen has appointed his government.

Lord Morris of Manchester: My Lords, my noble friend Lord Bach responded very helpfully recently to an inquiry about the more than 600 Kuwaiti prisoners taken by the Iraqis in Gulf War I, who were never accounted for by the regime of Saddam Hussein. Further to the Minister's moving reference today to the regime's "dark secrets", is there anything more my noble friend can say now about the fate of the Kuwaiti prisoners, and will she keep us urgently informed of any development in this deeply important matter?

Baroness Symons of Vernham Dean: My Lords, I associate myself with everything that my noble friend Lord Bach said about the Kuwaiti prisoners. It must be a matter of continuing anguish to the families, parents, husbands and wives of those who are unaccounted for. Sadly, as yet, I cannot give the noble Lord any further information about that, but I assure him that as soon as information becomes available it will be made public, consistent with, of course, anything that has to be said first to the families of those directly involved. I think we owe it to them in the first instance, as the loved ones of those who may have lost their lives, to give them the information as quickly as we are able.

Lord Maclennan of Rogart: My Lords—

Lord Maginnis of Drumglass: My Lords, I thank the noble Baroness for bringing the Statement to this House.

Baroness Crawley: My Lords, there will be time for everyone who wants to speak.

Lord Maginnis of Drumglass: To be brief, I associate myself with the remarks made by the noble Lord, Lord Howell, both in terms of his gratitude and that of your Lordships' House to all our servicemen who have contributed to the success of this campaign and also in terms of his criticism of the BBC. I was one of the first in your Lordships' House to suggest a wooden spoon for the BBC.
	However, I think your Lordships will agree that there are lessons to be learned from this campaign. One of those must be that economic boycotts do nothing to hinder evil regimes. Those economic boycotts that we saw in the case of Iraq did little other than handicap the most vulnerable within a regime such as that of Saddam Hussein.
	Have we now learned that we must first of all not rush to mend our bridges with France, which has supported the Saddam regime? In addition, we must look carefully at whether in fact the United Nations is properly geared—I use that word advisedly—to carry out those things that we expect from the United Nations, or whether in fact we need to reform, in terms of the year 2001, that which was put in place subsequent to 1945.

Baroness Symons of Vernham Dean: My Lords, I am grateful to the noble Lord for his remarks about our servicemen and women. I have stated my own position about the criticisms that have been made of journalistic coverage. At this stage, that is all I wish to say about that, except to pick up the point that the noble Baroness made about the Towards Freedom broadcasting. I was sorry to detect almost sniggering on the Liberal Democrat Benches about the broadcasting that is beginning. It is important to give the Iraqi people a view, for the first time, of what is happening in their own country and in the outside world which has not gone through the appalling filter of the Saddam Hussein regime. I do not understand why that was thought to be something that should have attracted wry smiles.
	As regards Al-Jazeera, I am not in a position to give the noble Baroness any more information on that. We very much regret all civilian deaths which occurred during the conflict. We are investigating what happened to the Al-Jazeera building. I am still not in a position to give her any definitive news on that. Again, I hope that we can return to that matter.
	As for the question of not rushing to mend our fences with France, the noble Lord said that it had supported the Saddam Hussein regime. That is going much too far. I must say to the noble Lord that we should not forget that France was with us over United Nations Security Council Resolution 1441. We all know that we had differences after that and what those differences were. But constantly to pick away at that wound will not help us to build a better future for Iraq. The role of our friends in France in doing that is an important one. It is a member of the P5. We shall need its support in any future United Nations Security Council resolutions, and I am afraid that we must work with them. For my part, I do not find that difficult. I understand that some of your Lordships do, but it is a matter of fact that working together will be essential if we are to do what we have all said is vitally necessary; that is, to build a brighter future for the people of Iraq.

Lord Maclennan of Rogart: My Lords, does the noble Baroness recognise that, as conquering powers, we cannot be perceived by everyone in the role of the agents of the international community, with the independence with which we might seek to judge our own actions? Does she also recognise that it is reasonable to be concerned that the revelation of weapons of mass destruction is indeed authenticated by an international inspection body, if that is possible? It would hugely support the understanding more generally of the reasons why we were supposed to have gone to war.
	More particularly, can the noble Baroness say something more about the position of this Government with regard to Syria? Few things have been more menacing and troubling in the past few days than the utterances of Defense Secretary Rumsfeld on that subject. The Statement that she read out stated:
	"As for Syria, we hope that it will now . . . make a decisive break with the policies of the past".
	It is only a matter of months since the President of Syria paid a state visit to this country and our Prime Minister visited Damascus. What is the implication of that statement today? Are we being caught up in the rhetoric—and perhaps worse—emanating from the American Administration about the future of their relations with Syria?

Baroness Symons of Vernham Dean: My Lords, I take issue with what the noble Lord said about our being a conquering power. I emphatically tell him that that is not how we have seen ourselves; that has not been said at any point by any of those in the coalition. We conceive our role as that of liberating powers. The noble Lord has only to look at the faces of the Iraqi people in Baghdad yesterday. They were not the faces of conquered people; they were the faces of liberated people who were themselves pulling down the statues of Saddam Hussein.
	I turn to the question of the authentication of any weapons of mass destruction that may be found. I have not ruled out—no one would dream of doing anything so silly—the authentication for which the noble Lord asked. What I said to the noble Baroness, Lady Williams, was that it was quite possible, if any weapons of mass destruction are found, that they will be found by coalition forces. The fact that they had been found by them should not lead one then to say that there was somehow a doubt about the veracity of what they had found.
	I fear that by pursuing their line, the Liberal Democrats may well argue themselves into the position, if weapons of mass destruction are found by the coalition forces, in which somehow the whole world will be able to say, "They were not real, because they were found by coalition forces". It is quite possible that they will be found by those forces, but the role of the United Nations in then inspecting what has been found has not been ruled out. It is a matter to be discussed with the UN and the forces on the ground.
	I turn to the question of Syria. There is nothing sinister in the statement that has been made about Syria. There have been questions about Syria's attitude to Iraq. That is clear. Those statements have been made openly. We are concerned about Syria's attitude. We do not want succour to be given by the Syrians to the fallen regime of Saddam Hussein. That is the point at issue. But there is nothing sinister in our asking my honourable friend Mike O'Brien to go to Syria, as my right honourable friend has done. As the Statement makes clear, having such a dialogue with Syria is the sort of thing that we need to be doing. That is precisely what the Government are doing—nothing sinister, but sensible diplomacy.

Lord Lea of Crondall: My Lords, I want to raise a question that has not hitherto been appropriate. In the light of the looting, and so on, I have given notice to my noble friend of my question, which I raise on behalf of the All-Party Group on Archaeology. One dimension of winning hearts and minds among significant groups in Iraq is recognition of their pride in their history. The heritage of Iraq has considerable potential for the crucial task of forging national unity. All groups in Iraq share a common pride—a pride successfully exploited by Saddam Hussein.
	For a number of reasons, it is desirable for any reconstruction plans to include some provision for safeguarding those sites.

Lord Campbell of Alloway: Reading!

Lord Lea of Crondall: Does my noble friend agree that the question of protecting archaeological sites against looting, borders and so on, should be given urgent attention now that the issue of policing is on the agenda? Would it be helpful if an Arab League country such as Tunisia was also involved in such a policing operation?

Baroness Symons of Vernham Dean: My Lords, that is a serious matter that the Government take seriously, but we must be careful. Military action in Iraq is not yet over. There may well be serious questions of security, not only in some of the outlying regions—we have been discussing Kirkuk and other problems raised by your Lordships relating to different parts of Iraq—but there is obviously still fighting going on in Baghdad. That is an important issue, but we must take things carefully at present, not move to some of the points that, however important they may be, are not as important as safeguarding the lives of the people on the ground—our own servicemen and women and civilians.
	However, we are considering how we can help the Iraqi people to preserve their archaeological heritage. We are in touch with archaeologists and other experts to discuss ways forward. I know that the matter concerns my noble friend. I have been trying to contact colleagues in the Department for Culture, Media and Sport, who of course have the primary responsibility in that area. If I cannot find someone who can help the noble Lord immediately, I am willing to meet him and his colleagues who take an interest in the matter one day early next week.

Lord Mayhew of Twysden: My Lords, does the noble Baroness recognise that, by reason of the way in which, from the outset of this matter, she has shouldered her anxious responsibilities to the House, she has put us greatly in her debt?

Lord Judd: My Lords—

Lord Livsey of Talgarth: My Lords—

Baroness Crawley: My Lords, I fear that we are out of time.

Sexual Offences Bill [HL]

House again in Committee.
	Clause 30 [Family relationships]:

Baroness Noakes: moved Amendment No. 201:
	Page 14, line 35, after "half-sister," insert "step-sibling or foster-sibling,"

Baroness Noakes: We now come to a group of amendments that concern the family relationships in the familial sex abuse clauses—Clauses 28 and 29. Amendment No. 201 adds step-siblings and foster-siblings to the list of basic relations—if I may term them that—in Clause 30(2)(a). That extends the relationship beyond blood relations. The amendment is consistent with the inclusion of step-parents and foster parents in paragraphs (b) and (c). In terms of creating a family relationship that can be abused, I cannot see that step and foster siblings can be separated from siblings of whole or half blood, who do not have to live in the same household to be able to abuse their family relationship.
	I am aware that under Clause 30(3)(d), foster siblings may be brought within the scope of the familial sex abuse clauses, but step-siblings could not be caught, except by Clause 30(4), which does not concern family relationships at all. It would be safe to include those relationships squarely in Clause 30(2). While I am on my feet, I support the amendment of the noble Lady, Lady Saltoun, which seeks to clarify which cousins are intended to be covered by Clause 30(3). The noble Lady knows far more about the meaning of words such as "cousin" than I could ever learn, and I look forward to hearing what she has to say. I beg to move.

Lord Falconer of Thoroton: There are three amendments in this group: Amendments Nos. 201, 202 and 203. They all deal with the question of who should be included in the family group. Clauses 28 and 29, dealing with familial child sex offences, are designed to protect children within the family environment, where they should be entitled to feel safe and protected but where, unfortunately, they are especially vulnerable to abuse and exploitation. Because of the balance of power in the family unit and the close and trusting relationships that exist within it, the family creates ideal opportunities for exploitation and abuse. What familial relationships should be covered? It is clear that the most important factors are the proximity of the relationship and the balance of power that exists between the abuser and his victim, and that those attributes extend beyond the immediate blood relatives of a family. The definition of the family unit also needs to be drawn widely to reflect the fairly loose structure of the modern family and the sometimes transitory nature of familial relationships.
	In brief, the definition of the family unit is therefore drawn into three categories. Subsection (2) relates to core family members. Subsection (3) relates to wider family members, such as the partner of the child's parent who lives or has lived in the same household as the child, or who holds or has held a position of trust or authority in relation to the child. Subsection (4) relates to other persons living in the same household as the child and who hold positions of trust or authority in relation to the child at the time of the alleged offence.
	The noble Baroness, Lady Noakes, proposes bringing step-siblings and foster-siblings within subsection (2), which covers relationships where there will always be an offence. As the noble Baroness will be aware, step-siblings and foster-siblings may not be related by blood; they may never live in the same household and may rarely come into contact with each other. So we do not think that it is right for them to be covered by subsection (2). We have already covered foster-siblings in subsection (3)(d) because we recognise that in some cases they may live in close proximity. There may also be merit in bringing step-siblings, who are not covered by paragraph (d), into the scope of the offence in certain circumstances. We should like to consider that point further. We are not suggesting their inclusion in subsection (2); in effect, we are suggesting subsection (3)—it depends on whether or not they live together.
	Amendment No. 202 is a government amendment. Subsection (3)(b), as drafted, brings the partner or spouse of the child's aunt or uncle within the scope of the offence, where the defendant lives or has lived in the same household as the child, or where he holds or has held a position of trust or authority in relation to the child. On reflection, we think that those relationships ought to be covered by subsection (4), where the defendant lives in the same household as the child, and where he holds a position of trust or authority in relation to the child. We no longer think that there is anything peculiar to the relationship between partners or spouses of aunts or uncles as distinct from a range of other relationships. Amendment No. 202 takes out of the scope of the relationships covered by the offence the partner or spouse of the child's aunt or uncle.
	The amendment of the noble Lady, Lady Saltoun, Amendment No. 203, would restrict the relationships between cousins covered in subsection (3) to first cousins. However, I do not think that the amendment is necessary, given that "cousin" is defined in subsection (5)(b) as,
	"the child of an aunt or an uncle".
	In the light of those considerations, I respectfully suggest that the noble Baroness, Lady Noakes, withdraw Amendment No. 201 to enable me further to consider the point about step-siblings. I make it clear that it is in regard to subsection (3), not subsection (2). I also ask Members of the Committee to accept the government amendment, Amendment No. 202.
	For the reasons that I have given, I am afraid that I do not think that Amendment No. 203 is necessary because the point is already covered. I therefore hope that the noble Lady will not feel it necessary to move it when the time comes.

Lady Saltoun of Abernethy: Clearly, I should have spoken to my amendment earlier. In spite of what the noble and learned Lord has said, I still think that "cousin" should be more sharply defined at an earlier stage. That would avoid any confusion. The child of an aunt or an uncle is a first cousin. It would be advantageous to specify that in the Bill. I shall not say any more, because my argument is now redundant. I still believe that, for clarity and to avoid doubt in the first instance, it would be better to specify the cousinship.

Baroness Blatch: I would certainly like to support the noble Lady, Lady Saltoun. Often, it is we in the Westminster village who are familiar with the legalese of legislation. However, having been a Member of the House since 1987, I cannot claim to be entirely familiar with the legalese that comes before us. "First cousin" is clear beyond peradventure. One would not have to look for implicit provision in other parts of the clause. But I concede that the argument has been well answered by the Minister, as does the noble Lady, Lady Saltoun.
	I was also going to rise to support the amendment of my noble friend Lady Noakes. I am grateful to the noble and learned Lord for agreeing in characteristic style to take it away, to look at it more fully and to take into account the omission that my noble friend talked about. We look forward to whatever comes of that at the next stage.
	I have taken wise counsel from my noble friend, who has a very real understanding of the Bill. We have had a fairly complicated discussion on Amendment No. 202. My understanding of that amendment differs from that of my noble friend. Rather than call that a point of issue between us, I wish to pose a question to the noble and learned Lord to clarify either my understanding or my misunderstanding about it.
	As I see it, the amendment appears to strip out one of the most obvious categories of potential sex abuser—the non-blood-related uncle. Deleting subsection (3)(b) removes uncles by affinity; that is to say, those who are not related by blood but who are married to a child's blood aunt. It also removes putative uncles; that is, a boyfriend of a child's blood aunt. Of course, it does the same for aunts by affinity and putative aunts. But it is well known that uncles, in particular, can abuse the trust that being part of a child's family gives them. Some men become obsessed with children within their families. The NSPCC says that, after brothers and fathers, uncles are the most likely source of sexual abuse within the family.
	I shall base my question around the following example. Am I correct in taking as an example the tragic murder of Danielle Jones, who was abused by her uncle Stuart Campbell, who was married to her father's sister? He had an obsessive sexual interest in teenage girls and became infatuated with Danielle. The infatuation led to her murder. Leaving aside the murder element, the man was guilty of taking advantage of a member of the family with whom he had a position of trust. He neither lived in the same house, nor, I believe, was he a carer, trainer, supervisor or in sole charge of the child. Therefore, on my reading, by removing paragraph (b), and by not conforming with the conditions in subsection (4), he would not be caught by these measures. If that is the case, then it would be bizarre, but I need to be told if that is the case.
	If the amendment is made, it would also mean that some children within a family could be protected, whilst other siblings were not. For example, when a widow married a widower and they both brought children to the new marriage, then two of the children would be protected and the other two would not. That is also a problem. If the wife's brother took a sexual interest in any of those four children, the children of the mother would be protected by the familial abuse provisions, but the children of the new husband would not.
	I am trying to elicit from the Minister whether I am right that that kind of person, that kind of relationship, which is among some of the most common abuse of people within a family, is caught by the provisions. If they are not caught, I would argue that subsection (3)(b) should stay in. If they are caught, how does that happen? I am talking about somebody who does not fulfil the terms of subsection (4)(a) and (b)—an uncle married to a blood relation of a child who does not either live in the household, or is a carer, trainer, supervisor or in sole charge of (B).

Lord Falconer of Thoroton: I understand the question. The uncle married to the sister of the father would not have been caught in the circumstances put forward by the noble Baroness under subsection (3), as unamended by Amendment No. 202; because as I understand the example given, he would not have lived with the niece—who would not be his niece by blood but by marriage; he would have no role in caring for or training her. If that is the position, that relationship would not have been caught by the existing subsection (3) with paragraph (b). So the removal of subsection (3)(b), which is Amendment No. 202, makes no difference to that example.
	We think that the right course would be that with such a person, the critical question should simply be: are the subsection (4) conditions satisfied? I think I have answered clearly the question of the noble Baroness, Lady Blatch. I am not sure whether I agree with the noble Baroness, Lady Noakes or the noble Baroness, Lady Blatch, but it would be invidious of me to find out which.

Baroness Blatch: I think my noble friend is probably nearer to the Minister in terms of the explanation that he has just given. For clarification, is he telling me that the partner or spouse of a blood relative of the child—that is the uncle who is not a blood relative—if he was not either living in the house or a carer, trainer, supervisor or in sole charge of the child, would not be caught by the provisions, with or without subsection (3)(b)? If that is the case, how can we make it clear in any amendment to the Bill, that that sort of person would be caught? I have given the most dramatic example of the case of Danielle Jones, but there are many young teenage girls who are still missing today and the issues concerning them have not been resolved. Prior to them being murdered they have suffered much sexual abuse. One has to imagine that because such cases do not all end in murder, there are many young girls who are vulnerable from uncles within a family.

Lord Falconer of Thoroton: Yes, I confirm what the noble Baroness has said; namely, that the uncle, not by blood but for example married to or the partner of the sister of the father, would not have been caught with paragraph (b) either in or out of the Bill under subsection (3). He would only be caught if it was under subsection (4), which means a live-in relationship, and paragraph (b) was satisfied. The reason why we do not think it is appropriate to catch the person—save in subsection (4)—is that we are dealing with family situations. We cannot catch people in a family situation who conceive an obsessive feeling about a person who these provisions are designed to protect, but are outside the family unit—for example a friend. They might be called "uncle", but would not fit in any known category of uncle. We have had to draw the line somewhere, and the line is being drawn around the family unit, as defined in Clause 30.

Baroness Blatch: If I could come back again. The uncle of a sister of the father of the child is a pretty close relative. He may not be a blood relative, but he is a close relative. He may have an incredibly close physical relationship with the family. My understanding is that the murderer of Danielle Jones did have a close relationship. The family were so shattered by the news that it was that uncle who had murdered their daughter, because of the closeness of the relationship of all of them in that family.
	It seems bizarre—I go back to the word I used rather cautiously earlier—that the person who abused the girl dramatically before eventually murdering her would not have been caught, simply because he did not live with the family or live with A and was not her carer, trainer or supervisor or in sole charge of her. The Bill needs amending to include what I regard as a very close relationship—the mother or sister of the parent of the child.

Lord Falconer of Thoroton: As the noble Baroness knows, it is obviously the case that dramatic abuse—I do not know the details of the case, so I am not commenting on it—would be covered by a range of other provisions in the Bill and by other existing provisions of the law.
	Here we are focusing on the family unit. The noble Baroness will know better than I that close relationships with, for example, somebody who is not an uncle—the next-door neighbour, perhaps—cannot be caught appropriately by the clause, even though the relationship could be as close as in the situation described by the noble Baroness. We must have clear limits. We will consider closely what the noble Baroness said, but we think that we have got the balance about right.

Lady Saltoun of Abernethy: Could we have some less complicated language? We keep hearing about the "spouse of the aunt or the uncle". The spouse of the aunt or the uncle is the uncle by marriage or the aunt by marriage. Those terms have been used all my life and are, so far as I am aware, still in use.

Viscount Bledisloe: I am puzzled by what the noble and learned Lord said in answer to the noble Baroness, Lady Blatch. I can see the situation if the family live in separate houses, but is the noble and learned Lord saying that, if I gave space to live in my house to my sister and her rather unsatisfactory husband, he would not be included in the scope of the clause unless he were regularly involved in caring for, training or supervising my daughter? Would that be the position if the noble and learned Lord's amendment were made?
	I have suggested that the gentleman of whom I spoke was rather unsatisfactory and was not regularly involved in anything desirable. Surely, if he lives in the house as the husband of the aunt, he should be within the scope of subsection (3). It is going too far to remove him from that, as the noble and learned Lord's amendment will do, and say that he is covered only if he is involved in caring for her. It would be extraordinary for a resident uncle by marriage not to count, unless he were a useful uncle by marriage involved in caring, training or supervising.

Lord Falconer of Thoroton: The noble Viscount has got it exactly right, as he defines the issue. We are acting on the basis that the question is whether the uncle by marriage—I apologise for using such complicated language previously—should be regarded as somebody separate from a person who lives with the family but provides no care. The noble Viscount has got it right. We think that we have drawn the line in the right place.

Baroness Noakes: It has been a useful debate, and my noble friend Lady Blatch has exposed some issues that should be thought about further.
	I thank the Minister for agreeing to consider the position of step-siblings again, but only in the context of subsection (3). I understand that that is his position. However, I go back to what he described as proximity and balance of power. I cannot see the difference between including half-sisters and half-brothers in the close family unit described in subsection (2) and including step-siblings and foster siblings. The noble and learned Lord said that it was a blood relationship or a half-blood relationship, but, given the ability of a half-sister, step-sister or foster sister to influence and abuse the child through the family relationship, there could be circumstances in which the same degree of potential for abuse existed.
	My noble friend, Lady Blatch, exposed the issue of the position of uncles by marriage. The clause also deals with partners who are not necessarily married, so it is more complicated than the noble Lady, Lady Saltoun of Abernethy, suggests. Again, my noble friend sees the relationship as being the dominant issue. It does not necessarily matter whether the person lives in the same household or has to prove that a caring relationship of the sort referred to in subsection (4) exists. It is the family relationship—notwithstanding the fact that it is not a blood relationship—that carries the potential for abuse.
	I am prepared not to press Amendment No. 201 pro tem, given the noble and learned Lord has said that he will look at the matter again. I hope that he will not move his Amendment No. 202, thus allowing us to debate this further before Report stage. Our debate today has made me more concerned about family relationships and how they are to be brought within these offences than I was at the outset. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton: moved Amendment No. 202:
	Page 14, line 42, leave out paragraph (b).

Lord Falconer of Thoroton: I have already spoken to this amendment. I beg to move.

Baroness Blatch: I am sorry that the noble and learned Lord has not taken the advice of my noble friend Lady Noakes because it would be helpful if we could consider this matter further. The Government have nothing to lose. Taking the two Houses combined, they have such almighty powers that they will get their way in the end. I think that we should all be given an opportunity to stand back and think again.
	The noble Viscount, Lord Bledisloe, pointed out a matter that I had not properly picked up, which was my fault. He said that an uncle of the sister of the father of the child who lives in the same house but does not have any supervisory, training or caring responsibilities, would not be caught. Equally, if the same uncle is in sole charge of the child, but does not live in the household, again he will not be caught. Only someone living in the household with a caring or supervisory role would be caught.
	That is a very muddled arrangement. We are discussing here an uncle who takes advantage of and abuses a child in what my noble friend described so well as a "family situation". Members of the Committee on all Benches should be extremely concerned about any abuse taking place in such close family relationships. Simply because both of the criteria set out in Clause 30(4) are not fulfilled, a young person will have no redress.
	I make a final plea to the noble and learned Lord. Will he consider giving the Committee more time to consider Amendment No. 202 as well as to allowing himself time to reconsider his position?

Lord Campbell of Alloway: Having listened to the debate, I consider that the point as regards the distinctions between family relationships and blood relationships is a good one. I support the suggestion made by my noble friend Lady Blatch that further consideration might be given to this matter. It is of some importance as regards the welfare of the child.

Baroness Howarth of Breckland: I seek clarification on one point about which I am very concerned. Is it not the case that, either under this clause or the earlier clauses relating to sexual offences, the case would have to be proved? Therefore, in the second set of circumstances the offender would be caught under earlier parts of the legislation once it is enacted. If not, then there is a serious gap. If so, however, the point is covered.

Lord Falconer of Thoroton: The noble Baroness, Lady Howarth, is quite correct. The noble Baroness, Lady Blatch, has been extremely persuasive in making her point. However, I feel that it would be wrong for me not to move the amendment because it would give a totally false expectation about what is going to happen next. Even though the noble Baroness has put her point very well, I feel that at this stage the right course is for me to move the amendment.

On Question, Whether the said amendment (No. 202) shall be agreed to?
	Their Lordships divided: Contents, 95; Not-Contents, 55.

Resolved in the affirmative, and amendment agreed to accordingly.

Lady Saltoun of Abernethy: had given notice of her intention to move Amendment No. 203:
	Page 14, line 44, after "are" insert "first"
	The noble Lady said: I will not move the amendment, but I want to say that I am not happy with the definition in subsection (5)(b) that,
	X'cousin' means the child of an aunt or uncle".
	That is not correct. It is sloppy and bad use of English. If the noble and learned Lord does not see fit before Report stage to qualify "cousin" as I have requested, I reserve the right to return to this matter.
	[Amendment No. 203 not moved.]
	Clause 30, as amended, agreed to.
	Clause 31 agreed to.
	Clause 32 [Sections 28 and 29: existing sexual relationships]:
	On Question, Whether Clause 32 shall stand part of the Bill?

Lord Falconer of Thoroton: This is exactly the same argument as we had in relation to Clause 27. I indicated then that where the formation of the relationship was by the abuse of an existing relationship and it continued after the Act came into force, then I did not believe that there should be a defence. This is precisely the same point as regards familial relationships. Having reconsidered the position, we support the noble Baroness, Lady Blatch, in removing this clause from the Bill.

Baroness Blatch: I am very grateful to the noble and learned Lord. I fully support what he has said and hope that this clause will not stand part of the Bill.

Clause 32 negatived.
	Clause 33 [Sexual activity with a person with a mental disorder or learning disability]:

Lord Adebowale: moved Amendment No. 204:
	Page 15, line 38, leave out "refuse" and insert "consent"

Lord Adebowale: In moving this amendment I also wish to speak to Amendments Nos. 212 and 218. These are probing amendments to ascertain the rationale for using the terms "refuse" and "choose" rather than the term "capacity to consent". It may be helpful to group these amendments with those in Clause 34 as they address the same substantive points.
	Capacity to consent is central to determining whether a relationship is appropriate for a person with a learning disability. The failing in the current criminal law is that it does not define capacity to consent and does not set out who can and cannot consent to sexual relationships and in what circumstances. It wrongly categorises people as being a mental defective or not a mental defective rather than focusing on whether an individual can consent to sexual relations in particular circumstances. The meaning and the effect of the common law is also subject to some legal debate.
	Certainly an act of submission without any understanding of what is taking place cannot possibly constitute consent. I should like to remind the noble and learned Lord, Lord Falconer of Thoroton, of the case of R v Jenkins. In that case David Jenkins was a support worker in a residential unit. He admitted having sexual intercourse with a woman resident. When it was discovered that she was pregnant DNA tests confirmed he was the father. At the trial experts agreed that the woman could name only some body parts, could not distinguish acts of sexual intercourse from other pictures shown to her and had no understanding of pregnancy or contraception. Plainly, she lacked the capacity to consent, as we would understand the term.
	However, the judge ruled that she had given consent through her "animal instincts". This case alone is a stark reminder of the need for new legislation and for laws to ensure that those who cannot consent have absolute protection of the law. It is alarming not only because it would allow abusers to claim that sexual relations are not abusive, but also because it dehumanises the person with a learning disability and robs them of their privacy and dignity.
	As regards the words "refusal" or "consent", I agree that in order to consent to sex an individual must understand what is proposed and its implications and be able to exercise choice. The word "choice" reflects cases in which someone is in a position of power over another, so that person is unable to refuse or choose to have sex. There is a difference between "choice" and having the freedom to make that choice. Someone may comply with another's request for sex, but that does not mean that the choice to have sex has been exercised freely or without undue influence.
	There is a sound basis to preferring the term "consent", over and above the niceties of the English language. I have already explained that the word "consent" is pivotal in determining whether an act is abusive. The BMA and the Law Society have published guidance that uses the test of capacity to consent to sexual relations. The phrase "capacity to consent" has also been thoroughly tested in case law. It is a valid defence to most sexual offences committed against people of all ages. The term "consent" is used by parliamentary draftsmen in many criminal statutes, but has not been defined.
	I am mindful of the Law Commission's draft report and the draft Bill on capacity and the Government's commitment to introduce new capacity legislation when parliamentary time allows. The Law Commission and the two Government consultation documents on mental capacity—Who Decides and Making Decisions—use the term "capacity to consent". I seek clarification from the Government as to why they have departed from that wording. For my part, I am uncertain as to whether inability to refuse will give less or more protection to people with a learning disability. However, I am clear that the law should protect people who are unable to give any consent to sex.
	There is sound precedent for using the term "unable to consent" and that should be reflected in the offence. If we proceed with the terms "choice" and "refuse", I would like an assurance about whether it will be necessary to revisit and redraft the clause when the new mental capacity legislation is in place.

Lord Astor of Hever: We on these Benches support the probing nature of the amendments. We question the wording of the clause.
	Ability to consent and ability to refuse are different, the first demonstrating active agreement and the second simply describing where someone could not demonstrate their unwillingness. Other clauses in the Bill discuss consenting to sexual activity, and it is unclear why the Government have decided to change their stance and use the words "unable to refuse" and have opted to refer to choosing to agree to the touching rather than consenting.

Baroness Blatch: I also support the amendment tabled by the noble Lord, Lord Adebowale. He has made an extremely persuasive case and, unless the noble and learned Lord can make an even more persuasive case, I shall continue to support the amendment.

Lord Thomas of Gresford: We on these Benches would be interested to know how the words "refuse" and "consent" are to be taken in regard to Clause 77. That clause defines consent in a way that would probably be incapable of understanding in the case of a person with a learning disability. We welcome an explanation from the noble and learned Lord.

Lord Rix: I shall be on my feet a number of times in the next few minutes, so all I shall say is that I fully support the amendment that my noble friend has tabled.

Lord Campbell of Alloway: I suppose that there must be something wrong with me, but I cannot see the distinction in any practical context of lacking a capacity to consent and lacking the capacity to choose whether to agree. I cannot see that in the definition of the mental state there is any practical distinction. However, I may have misunderstood the situation.

Lord Falconer of Thoroton: The amendment raises important wider issues about the definition of the capacity to consent—I use that term in a non-technical sense—to which we shall come under later amendments. For the moment I shall address only the technical issue that the noble Lord, Lord Adebowale, raises in Amendment No. 204.
	The amendments are concerned with a situation whereby someone with a mental disorder or learning disability is approached to engage in sexual activity. The issue is whether at that time they were able to understand enough of what was proposed to refuse if they did not want to engage in sexual activity. The clauses as drafted define the criminal behaviour in terms of it being committed against someone who is unable to refuse being subjected to it. That clearly defines the vulnerability of the victim in these cases and does so in straightforward language. That does not seem to amount to any substantive change. The proposal is perhaps designed to probe why we have chosen the words that we have.
	The answer is a technical drafting point. If we used the word "consent" it would import the definition of consent at Clause 77, which states that,
	"a person consents if he agrees by choice, and has the freedom and capacity to make that choice".
	So the Bill provides that a person can consent only if he has the capacity to choose. As Clause 33(2) is meant to be a definition of capacity to consent, incorporating the word "consent" would make the definition circular. That is why we have used different words. Noble Lords can consider the point by looking at the relevant provisions. However, we have made the decision because of that good drafting point. In those circumstances, I invite the noble Lord to withdraw the amendment.

Lord Rix: The very point that the noble and learned Lord has just made was made in my briefing from Mencap. Although I wish to support my noble friend, perhaps it is because of loyalty to him as well as a belief that his description of people with a learning disability must commend itself to the Committee.

Baroness Blatch: I have a question for the Minister in the light of his explanation. I am still persuaded by the noble Lord, Lord Adebowale. If a person is propositioned in these circumstances but has not consented; if the only test—should the case come before the courts—is whether they had a capacity to refuse; and if it was proven that they could perhaps have refused but did not, or it was deemed that they had not refused, then, although they had not consented, they would be left without a defence. The victim would still be a victim and there would be no remedy in court, simply because the only test was whether they had the capacity to refuse. It seems that there is a lacuna. I am not sure that the noble and learned Lord has been more persuasive than the noble Lord, Lord Adebowale.

Lord Falconer of Thoroton: That is right. Whereas the Bill says, "unable to refuse", the amendment says, "unable to consent". They both amount to precisely the same level of protection.

Earl Russell: I cannot help being a little perturbed by the case of R v Jenkins which the noble Lord, Lord Adebowale, quoted. If "consent by animal instinct" is to be taken as a sufficient consent, then one does, does one not, altogether remove the element of reasonableness which is such a consistent thread through the body of the common law? I cannot help but feel that that could have rather more far-reaching consequences than perhaps we are thinking about at the moment. It worries me.

Lord Falconer of Thoroton: I am not aware of the detail of the Jenkins case. Obviously I shall have to look at it. It is a perfectly legitimate concern and I understand the concerns being expressed. However, looking at the wording, I think that the concerns are misplaced. I must consider profoundly what has been said in relation to it. I think that we are all trying to reach the same conclusion.

Lord Adebowale: I agree that we are all trying to reach the same conclusion, and I think that I understand the noble and learned Lord's response to my amendment. However, I am still concerned. I think that the case that I quoted raises some genuine issues which I am not sure have been fully addressed. I believe that the ability to consent is critical to the ability to make a choice. I respect the support that noble Lords have given to my amendment. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Astor of Hever: moved Amendment No. 205:
	Page 15, line 38, leave out "disorder or learning disability" and insert "disability or physical incapacity"

Lord Astor of Hever: In moving the amendment, I speak to Amendments Nos. 206, 209 and 210. Before doing so, I should like to mention the rationale underlying the amendments and to explain in particular the grouping. These four amendments deal with the issue of whether physical incapacity warrants inclusion in Clauses 33 to 51. In the next group I shall tackle the specific area of definitions: the complexities of what the terms "mental disability", "mental disorder", "learning disability" and "learning difficulty" cover and which terms are preferable for use under this legislation. I realise that Amendments Nos. 205 and 209 introduce a term "mental disability". However, for the sake of clarity I prefer to talk about the advisability of adopting this term when I speak to Amendments Nos. 207, 211 and 404. I speak now to Amendments Nos. 205, 206, 209 and 210.
	The Law Society and MIND have made several representations to us about the advisability of including physical incapacity in Clauses 33 to 51 along with whatever definition is preferred to describe mental impairment. Many people are not capable of expressing valid consent or indicating a lack of consent and are as such vulnerable because of a physical disability.
	There may be circumstances where a person may not fit the legal criteria of "mental disorder" or "learning disability" but may be unable, by reason of physical incapacity, to communicate his or her consent to sexual activity: for example, those who are mute, deaf or in a coma. Although their reason for incapacity to consent is of a different kind—it is physical, not mental—they should be afforded the same protection.
	In paragraphs 4.5.8 of Setting the Boundaries, the Law Commission recommended that for the purpose of any non-consensual activity offence,
	"(1) a person should be regarded as lacking capacity consent if at the material time:
	(a) the person is by reason of mental disability unable to make a decision for themselves on the matter in question: or
	(b) the person is unable to communicate their decisions on that matter because they are unconscious or for any other reason". Sub-paragraph (1)(b) points to some physical disability. It is on that basis that we have some sympathy for the inclusion of physical incapacity. It is a point which is covered in the rebuttable presumptions in Clause 78. We on these Benches believe that a debate on its inclusion here is worthwhile.
	It is clear that during the consultation process, there were some who believed that physical incapacity should be included in Clause 33 and following clauses. Paragraph 4.53 of Setting the Boundaries states:
	"The review was unanimously agreed that some people had levels of mental and sometimes physical disability so severe that they could not be regarded as being able to give consent in any circumstances. Examples may be those with severe brain damage, severe learning disabilities or severe dementia. Such people would not be able to understand what was being asked of them or to communicate consent, or the lack of it, in any way".
	That suggests that there is some overlap between physical and mental impairments in terms of being able to consent. It might then be thought appropriate to include those with physical incapacity in the amendments which deal with inability to consent because of mental disorder or learning disability. I beg to move.

Lord Rix: As the president of Mencap and the father and grandfather of a daughter and a grandson with a learning disability, I believe that I am somewhat qualified to add briefly to the discussion on the always vexed issue of terminology. The noble Lord, Lord Astor, has been kind enough to share his thinking and his briefing with me and I am happy to return the compliment.
	We are, if I may say so, entirely agreed on the importance of clarity, all the more so since I am conscious that any time someone steeped in this debate even lists the diverse terms, a sort of quiet despair spreads across the noble countenances of others of your Lordships.
	The Bill offers "mental disorder or learning disability", as does the noble Lord, Lord Astor, in Amendment No. 220 tabled in his name and those of the noble Baroness, Lady Noakes, and the noble Lord, Lord Campbell of Alloway. In the next set of amendments, Amendments Nos. 207, 211 and 404, the noble Lord and his co-sponsors seek to substitute "mental disability" for "mental disorder and learning disability", while in these amendments, Amendments Nos. 205, 206, 209 and 210, there are other attempts to exclude learning disability.
	I have no objection to the separate proposal for inclusion of physical capacity as a relevant factor. Someone with very good intelligence and an unclouded mind may indeed be unable to act in and speak for their interests in a sexual encounter because of their physical incapacity. Furthermore, I have no objection to whatever terminology colleagues in the mental health field want to use to describe those with severe incapacitating mental illness.
	But I do object to removing "learning disability" from the Bill. I know exactly what learning disability means. As the noble Lord, Lord Astor of Hever, said from our shared brief, it is in English usage in this country a common and commonly understood means of describing intellectual limitations of various degrees dating from birth or soon afterwards and lasting for life. Some social disability normally goes with the intellectual disability, although I have to say that some people with learning disabilities seem to me to have outstanding social skills. I have some sympathy with the desire to define the term in the Bill. I certainly want to use it.
	"Learning disability" is different from the term "learning difficulty" when used to describe specific deficits in learning skills such as dyslexia. It is also different from "mental illness", which is a clouding or distortion of perception that may hit any of us, quite often does, and is happily amenable to treatment in many cases. Even senior Ministers of the Crown—I will not mention names—have been known to confuse mental illness and learning disability, and I want to take every opportunity to avoid that frequent confusion.
	For the avoidance of doubt, I prefer to keep "learning disability" in the Bill and thus to recognise that it is something different from the perhaps fluctuating capacity that may go with "mental disorder", and stands out from the amorphous "mental disability". In short, I think that the Government have got it right in this particular and the noble Lord and his colleagues have got it wrong.

Lord Addington: I am a newcomer to the Bill who happened to be in the Committee during this discussion. As the noble Lord, Lord Rix, pointed out, the definitions in the Bill are correct. Surely physical incapacity, where it would lead to a lack of communication ability, should be brought in. If that point is covered elsewhere in the Bill I will take my slapping on the wrist well, but it is an important point. I agree with the noble Lord, Lord Rix, but I wonder whether physical conditions that inhibit the ability to communicate properly are taken into account in the Bill.

Lord Adebowale: We are dealing with a most complex issue. I support the point made by the noble Lord, Lord Rix. As someone who is involved with a charity that provides a service to many people with learning disabilities, and having involved myself in the world of learning disability over the past few years, I am always filled with a certain sense of despair when there is a failure to acknowledge what is an issue for well over a million people; indeed, it will become increasingly so over the next 10 years during which we shall see an increase of about 3 per cent in the main population and anything up to 70 per cent in minority ethnic populations. We need to start using the term, and understanding it as being a separate entity.
	However, I have some sympathy with the point raised by the noble Lord, Lord Astor of Hever, in that there are people with physical incapacity who would face a real challenge in this respect. I put forward the following as a helpful suggestion. Both sides in this discussion are seeking to achieve the same aim. We are all in agreement as regards what we wish to achieve. We are trying to find a form of words that acknowledge a range of challenges faced by individuals, which might prevent them from engaging with the law. I suggest that further discussion takes place with the likes of MIND, my organisation Turning Point, and Mencap before the conclusion of the Committee proceedings. This would enable us to arrive at a suitable definition that might reflect the wishes of all sides.

Baroness Howarth of Breckland: I support one half of the proposal put forward by the noble Lord, Lord Astor of Hever. I do not want to enter a debate about definitions regarding disability, because the noble Lord, Lord Rix, is an expert in that field. However, I am the vice-chair of John Grooms charity for disabled people. It would be a pity if we did not explore the argument that if people with physical incapacity were not included at this point in the Bill it would leave a gap. This is a most complicated area. Real questions arise as to whether or not one can communicate consent in these circumstances.
	There needs to be a definition about levels of capacity to communicate and about conditions in order to get the legislation right. It would be useful to hold further discussions on the matter to ensure that this group of people who are abused are included in the legislation. I have experience of advocating for physically disabled people who have been abused.

Lord Falconer of Thoroton: It is incredibly important for us to ensure that the basic definition of the group covered by Clauses 33 to 51 is the right one. There is not much doubt about the fact that we are all trying to arrive at the same conclusion. I thoroughly agree that the Government should keep their mind open between now and the Report stage on the issue of the right way to deal with this form of words. I shall set out our current thinking. However, I should tell the Committee that I shall carefully consider all the comments made today.
	I shall refer to Amendments Nos. 205, 206, 209 and 210, but also mention the next group—Amendments Nos. 207 and 211—because they raise a similar issue. The first proposition, under Amendments Nos. 207 and 211, is that "learning disability" should be dropped from the definition. The noble Lord, Lord Astor of Hever, supports that proposal, but the noble Lords, Lord Rix and Lord Adebowale, are against it.
	I can see the force of the proposal put forward by the noble Lord, Lord Astor of Hever. We believe that "learning disability" comes within the definition of "mental disorder". For that reason, it does not need to be dealt with separately. If we took that approach, it would have to go right across the board in relation to all these clauses, which means that we would need to bring forward an amendment to deal with the whole position. That is our current thinking, but that is not in line with the view expressed by the noble Lord, Lord Rix. Therefore, before we make a final decision on the matter, we need to discuss the matter with the various groups to ascertain whether we are right or wrong in that respect.
	The second proposal in this group of amendments is to replace "mental disorder" with "mental disability". I know that the this has been proposed by the Law Commission, and that it is being considered for the Incapacity Bill, as well as the new Mental Health Bill. However, it would be unwise at present to connect oneself to a definition that has been put forward only in draft form because it may be amended before it becomes law. We believe that the right course of action is to wait for the later Bill. If the definition is adopted at that stage, or adopted in a changed form, we can then amend what would be the Sexual Offices Act 2003 in the subsequent Bill.
	The third issue is the important proposal of whether "physical incapacity" should be included within these clauses. As a group, those with a physical incapacity have the capacity to consent, whereas these clauses are intended to protect those who lack that capacity. Some people, along with a mental disorder, also have a physical incapacity—

Lord Addington: If a person has a communication difficulty with a physical incapacity, he may well be denied any communication ability. That really does not follow.

Lord Falconer of Thoroton: One can see that the types of vulnerable victim with whom these clauses seek to deal are different from the types of victim we shall seek to deal with in other parts of the Bill. Therefore, people in a coma, for example, who have been identified or those unable to communicate by reason of a physical disability are covered by the presumption in Clause 78. When people suffer only from a physical disability as opposed to a combination of a physical disability and mental incapacity, is it right that they should be brought within the provisions of this part of the Bill? Our current view is that if a person has a mental disorder and physical incapacity, he is already covered; if he has only physical incapacity, then that is better dealt with by the existing provisions. Would such people want to be covered by these parts of the Bill?

Baroness Walmsley: I thank the Minister for giving way. I am still unclear about the situation of a person who has a serious verbal communication difficulty—perhaps a serious speech impairment—who is unable to communicate, is perhaps frozen with fear and cannot communicate in any other physical way. Perhaps the Minister can explain how such a person would fare under this provision.

Lord Falconer of Thoroton: Let us assume the person to be an adult. Let us assume that he has no mental incapacity of any sort but that he is unable to communicate his wishes. If, without his consent, he was subjected to a sexual act, that, without any doubt, would plainly be caught by the first 11 provisions of the Bill. Therefore, I ask myself why it is also necessary to raise questions in relation to this part of the Bill with regard to such a person.
	We also seek to provide additional protection for such people in Clause 78 by saying that there is a presumption that there is not consent unless the relevant burden is satisfied. We believe that that is the right way to deal with this issue. Obviously protection is in place, and I ask whether such people want protection under this heading. That is our basic position. As I said, our minds are open, but I set out what we consider to be the right approach. In the light of that, I hope that the noble Lord will not press his amendment now. Obviously we need to have further discussions about the way forward.

Lord Astor of Hever: I thank the Minister for that reply. I agree with him and with all the other speakers that it is absolutely vital that we get the definition right. I had hoped that this group of amendments would relate more to physical incapacity but, as other Members of the Committee have addressed the definition issue, I shall touch on that.
	As always, I am grateful to the noble Lord, Lord Rix, for, both inside and outside the Chamber, putting me right on all these very technical terms. It is entirely thanks to him that I understand most of them now. I say to him that we must all work together to try to get the right definitions in the Bill. I believe that in the past we have worked very well on that.
	As the noble Lord, Lord Adebowale, said, this is a very complicated issue and we must all try to find the right form of words. I certainly think that MIND, Mencap and Turning Point need to get together.
	So far as concerns physical incapacity, there has clearly been a difference of opinion as to whether there is sufficient protection. We want to read Hansard very carefully and consider that before Report stage. In the meantime, I beg leave to withdraw—

Lord Campbell of Alloway: Before the noble Lord sits down, perhaps I may intervene briefly. I put my name to this amendment largely as a result of my experience at the Bar in learning disability cases.
	"Learning disability", as the noble Lord, Lord Rix, knows probably far better than I, is a somewhat technical and narrow definition. My noble friend Lord Astor, on the Front Bench, seeks to remove a narrow definition and extend it in a way which will include the lesser. Looking at the matter from that point of view, I am absolutely with him. That is only one aspect of the issue.
	If one looks at the words "mental disorder or learning disability" and squares them against "mental disability or physical incapacity", the latter is the more comprehensive concept that embraces the former, without importing difficulties of construction. One is using words that can be clearly understood. What a learning disability is cannot be so clearly understood because that has been the subject matter of a considerable amount of case law. One wants to get away from case law if one can. One cannot always escape. We are looking for the right definition which will work best in practice. One wants really to try to find the wider definition, using words that have not been treated with a form of technical interpretation and constraint. That is why I put my name to the amendment. I would not have done so if I did not support my noble friend.

Lord Rix: Before the noble Lord withdraws his amendment, perhaps I may respond to the noble Lord, Lord Campbell of Alloway. He has put his finger on a particularly sore point so far as I personally am concerned. I have always realised that "learning disability" was a difficult definition of the condition of learning disability. But we want to get away totally from the use of the word "mental". Therefore, "mental disability", "mental defect", whatever it may be that has been used in the past or that which it is likely could be used in the future, is a total anathema not only to me as a parent and as a grandparent but to all people connected with the world of learning disability. We are talking about a constituency of 1½ million people in this country with a learning disability, which is a large proportion of the population.
	I agree though that "learning disability", as such, is not a particularly adept description. I believe those in the Antipodes have probably put the matter better. They talk about "intellectual impairment", "intellectual disability" or "intellectual handicap". I believe that the use of the word "intellectual" probably sums up the condition more accurately and does not confuse the position with "learning difficulty", which of course is a separate issue. Learning difficulty can be from physical causes or dyslexia or sensory conditions, such as short sight, hearing impairment or whatever. Those conditions cause learning difficulties.
	It is a sine qua non that a person with a learning disability also has a learning difficulty. So one sees that the arguments could rage across these Benches for the next 24 hours and I do not think I would be very popular if I continued. However, I throw this response to the noble Lord, Lord Campbell, as perhaps a challenge for the Government as something that should be looked at for the future, which is using the term "intellectual".

Lord Astor of Hever: I am grateful to my noble friend for his observations. Clearly, this is a very important matter. I think that we shall return to the definition in great detail on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 206 not moved.]

Lord Astor of Hever: had given notice of his intention to move Amendment No. 207:
	Page 15, line 38, leave out "or learning disability"

Lord Astor of Hever: I shall speak also to Amendments Nos. 211 and 404. The amendments were designed to get to the bottom of the correct terminology. In the light of what the noble and learned Lord has said about reconsidering the definitions, I shall spare the House the rather lengthy speech that I was minded to give. I very much hope that we shall return to the matter in great detail on Report.

[Amendment No. 207 not moved.]

Baroness Pitkeathley: I call Amendment No. 208. If it is agreed to, I cannot call Amendments Nos. 209 to 211 for reasons of pre-emption.

Lord Adebowale: moved Amendment No. 208:
	Page 15, line 40, leave out paragraph (d).

Lord Adebowale: I shall speak also to Amendment No. 217. Some people have levels of mental disability so severe that they could not be regarded as being able to give consent in any circumstances. Examples include those who are profoundly learning disabled and many who are severely disabled. Such people will not be able to understand what was being asked of them or to communicate consent or the lack of it in any way. Absolute prohibition on sexual relations with such individuals is justifiable as essential for their protection.
	Sexual contact with someone who cannot consent to that contact for reasons of severe learning disability should be a criminal offence. The amendment would make that offence one of strict liability. A defendant could not claim any defence once it was established that an individual was unable to give informed consent because of his severe disability. One can argue that it cannot be a defence that the accused thought that the individual gave his consent. My organisation, Turning Point, is aware of a case in which a person with a severe learning disability aged 30 was befriended by a member of his church and sexually abused. The accused claimed that he did not realise that the young man had a mental impairment, despite the fact that a clinical psychologist claimed that his condition was immediately apparent and that he could not give his informed consent.
	I appreciate that there may be some cases in which a person's disability may not be immediately apparent or so self-evident, especially in a case of a person with autism or someone with a mental disorder. On that basis, I understand the rationale for including paragraph (d). Its drafting is an improvement on the current legal position, in which a defendant can simply claim that he did not know that someone had a mental disability as a means to escape punishment.
	Indeed, I go further, I commend the Government for trying to close that dangerous loophole. On the other hand, I should not want the defence in paragraph (d) to be raised automatically with the solid intention of putting additional strain on the victim or used as a device to force that person to be cross-examined in the witness box, which has often happened. Similarly, I should be concerned if that was raised in cases in which the victim is so severely disabled that it would be absolutely evident that the person was vulnerable.
	I am aware of a case in which it was established that a person was a "mental defective". That was challenged by the defendant. The victim was forced to give evidence, but the judge ruled that the victim was not a competent witness, refused that person special measures under the Youth Justice and Criminal Evidence Act 1999 and dismissed the case.
	I hope that the Minister can reassure me that such a mistake by a judge will not happen once the Bill is enacted. The defence that the offender did not know that the victim had a severe learning disability is often not credible because of the circumstances or characteristics of the injured party. There is a case for dropping that as a special defence but not preventing it being pleaded in mitigation by an accused party. I should welcome the Minister's response to that suggestion.
	In any event, I suggest that there is a case for guidance for Crown prosecutors and judges in this area to spell out the circumstances in which the defence in paragraph (d) can be raised; to reinforce the need for special measures to support the victim in court; and to explain how the reasonableness test in the clause will be applied in practice. I beg to move.

Lord Thomas of Gresford: This is a most extraordinary amendment. Although I appreciate the spirit in which it is moved, the noble Lord is suggesting that a person could be imprisoned for life for intentionally touching another person in a sexual way without realising that that person suffers from a mental disorder or a learning disability. Surely, the prosecution must show that the defendant has some mens rea. The use of the expression that he would be guilty if he,
	"could reasonably be expected to know that B has a mental disorder",
	covers all eventualities.
	The noble Lord said that that should not be a defence where it is not credible. If a defence is not credible, the jury will not believe it; they will not accept it and will find the defendant guilty. Ultimately, that is the only way in which the criminal justice system can possibly work.

Lord Falconer of Thoroton: As the noble Lord, Lord Adebowale, said, and the noble Lord, Lord Thomas of Gresford, identified, the two amendments are designed to remove the requirement that sexual activity with a person with a mental disorder or a learning disability, or causing a person with a mental disorder or a learning disability to engage in sexual activity, is committed only where the defendant knows or could reasonably be expected to know of that person's mental disorder or learning disability.
	I accept that in some cases where someone has a mental disorder or a learning disability sufficiently severe for them to lack the capacity to consent, that will be utterly apparent. In such cases, it would be relatively easy to prove that the defendant could reasonably have been expected to know of the person's lack of capacity to consent. I would have thought that that would apply in the sort of case that the noble Lord refers to when he says that the position was "immediately apparent". In the vast majority of cases, there would be no requirement to call the victim, because it would be proved by medical evidence that that was the position.
	It is right to recognise that there may be cases where incapacity is not apparent and that there is a genuine defence. It is for the prosecution to prove its case. It is not possible for restrictions to be made on when the defence can be advanced; that must be a matter for the defence itself. But we should be prepared, first, to trust juries to reach sensible conclusions about it, and, secondly, to trust judges to ensure that there is no requirement for any demeaning cross-examination to establish the position. It can usually be established by the calling of other evidence.
	I agree with the point made by the noble Lord, Lord Thomas of Gresford. It would be wrong to convict anyone of an offence that carried a maximum sentence of life imprisonment when they did not know, and could not reasonably have known, that someone did not have the capacity to consent to sexual activity. Therefore, although I understand the spirit in which they were moved, I must resist the amendments.

Lord Adebowale: I note the response of the noble and learned Lord, Lord Falconer. Although I understand the comments made on my amendments, my concern is that it is still possible for someone to be cross-questioned. The example that I gave is clear evidence of that, and it is only one among many. I am not sure that I am entirely satisfied. I note the comments of the noble Lord, Lord Thomas. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 209 to 212 not moved.]

Lord Astor of Hever: moved Amendment No. 213:
	Page 16, line 4, leave out "possible" and insert "reasonably forseeable"

Lord Astor of Hever: The amendment aims to challenge the reasoning behind the wording of Clause 33(2)(a). Subsection (2) gives two alternative reasons why B is unable to refuse sexual activity. Either he lacks the capacity to choose, or he is unable to communicate his choice. With the former option we are given a further explanation in brackets,
	"whether because he lacks sufficient understanding of the nature or possible consequences of what is being done, or for any other reason".
	Amendment No. 213 proposes replacing "possible" with "reasonably foreseeable". "Possible consequences" is too broad and too vague. "Reasonably foreseeable" seems a better alternative. It points to the likely outcome rather than what is "possible", which might relate to any number of things. The Law Commission used the term "reasonably foreseeable" in response to the consultation document. It is a small point, but it is important we get it right. It is just the sort of thing that might become the basis of legal wrangling in court cases. So I would welcome the Minister's clarification on the choice of wording.

Lord Falconer of Thoroton: I feel that I am being drawn into the most unhelpful legal debate about particular words. The perfectly well-intentioned amendment of the noble Lord, Lord Astor, seeks to replace "possible consequences" with "reasonably foreseeable consequences". It seems to be based on the Law Commission definition of capacity to consent, as proposed in Setting the Boundaries. Unlike the Law Commission's definition, our definition refers to a person who lacks sufficient understanding of the possible consequences of what is being done. The Law Commission definition referred to a person who is "unable to understand" the reasonably foreseeable consequences of the Bill.
	The effect of the amendment would be to refer to a person who lacks sufficient understanding of the reasonably foreseeable consequences of the act. I am not sure that it is any different from a provision which refers to a person who lacks sufficient understanding of the possible consequences of the act. The definition in the Bill is clearer and more straightforward. One could find a million lawyers who would give a million definitions of the proposal made by the noble Lord, Lord Astor. I believe that it is right to take straightforward words, put them in the Bill and leave it for the court to decide on the facts of the case, rather than adopt a range of words that are selected from various other parts of the law which might be over-complicated. Unless a good reason is given for departing from the simple words, we are minded to stick with our own. However, we will of course consider any arguments that are advanced.

Lord Astor of Hever: I do not wish to draw the Minister into unhelpful debate, as we were trying to be constructive. As he said, the amendment was based on the Law Commission definition. I am grateful for that response. We will consider it. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Astor of Hever: moved Amendment No. 214:
	Page 16, line 4, leave out ", or for any other reason"

Lord Astor of Hever: Amendment No. 214 is a probing amendment. I have been wondering what other reasons could be invoked in relation to capacity which the inclusion of the phrase "or for any other reason" would be designed to cover.
	I almost feel that this vague wording is a result of drafting legislation on consent. If the wording is too loose it will create trouble in the courts. We would welcome a more tightly-worded specific phrasing in the clause.
	Amendment No. 215 continues in that vein. The Bill leaves open the possibility that a defendant may be charged with offences because he has sexual relations with a person who, he knows, has a mental disorder or learning disability. Not all mental impairments are constant conditions, affecting someone to the same extent and degree continuously. The Bill should make it clear that the defendant's knowledge of the subject's mental disorder or learning disability relates to the time at which the alleged offence took place, rather than to the general knowledge that the subject has been diagnosed as suffering from a mental disorder or learning disability. I beg to move.

Baroness Blatch: I do not want to argue with my noble friend about the amendment. He said that it was a probing amendment, so I speak to it in that vein.
	I am concerned about the narrowing of the test. My noble friend said that he would prefer to see a tightening of the wording. However, if there were a tightening of the wording, it would have to be more comprehensive and inclusive. Anything that fell outside the tightened-up wording would not be caught by the phrase,
	"or for any other reason".
	It would be difficult to draft a law that covered all eventualities. The Bill leaves the courts freer to make a judgment about whether something is caught by the provisions. If B lacks the capacity to choose or—I would prefer to use the word used by the noble Lord, Lord Adebowale—to consent for any reason other than not understanding the nature or consequences of what is happening, it could be that there was another reason. There could be another reason that would be just as valid and prove that something undesirable had happened to the victim, B. The catch-all phrase,
	"or for any other reason"
	leaves the courts with some welcome flexibility.
	I hope that my noble friend will agree that person B should receive the protection of the court from sexual assault on the basis of a reason that is accepted by the court after due process as valid but falls just outside the wording of the subsection as it would be if we took away the words,
	"or for any other reason".
	The difficulty is that, if we narrowed the wording, we would have to consider more closely how we described all the possible eventualities. That might be too difficult.

Lord Falconer of Thoroton: We accept the reasoning of the noble Baroness, Lady Blatch, about the matter. The basic thing that must be established is that B is unable to refuse. He is unable to refuse, if he lacks the capacity to choose whether to agree to the touching; that is what must be proved. He might lack that capacity because he lacks,
	"sufficient understanding of the nature or possible consequences of what is being done, or for any other reason".
	The phrase,
	"or for any other reason"
	would include the matters referred to in the amendment moved by the noble Lord, Lord Astor of Hever, but I imagine that a significant number of lawyers could think of variations that do not quite fall within the bracketed words but which, none the less, a sensible person would think showed that the victim lacked the capacity to choose whether to agree. It would not be helpful to restrict the basic definition of whether somebody lacks capacity. Although I fully understand the reasons for moving the amendment, which is only a probing amendment, we think that we would give the best protection by including the words,
	"or for any other reason".
	That is why we did it.

Lord Astor of Hever: I am grateful to the Minister for that response. I take on board what he said, as well as what my noble friend Lady Blatch said, and, in the light of that, we will want to consider the matter again before Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 215 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 216:
	Page 16, line 7, leave out subsection (3).
	On Question, amendment agreed to.
	On Question, Whether Clause 33, as amended, shall stand part of the Bill?

Lord Rix: Originally I drafted an amendment which sought to insert a new clause after Clause 116. It was headed, "Orders of court: therapeutic or counselling services for victims". Unfortunately, I was informed that such a clause would not find a happy home in this Bill, and that the best I could hope for would be to receive assurances from the Minister by pursuing the route of opposing the Question whether this clause should stand part of the Bill. This I am now doing, and I trust that I shall not detain noble Lords for very long.
	The issue is the lack of specialist counselling and therapeutic services for people with a learning disability who become victims of sexual abuse and for whom the process of recovery can be painfully slow and, of course, painfully difficult. Therefore we must consider how best we can help them.
	The national provision of counselling and therapeutic services for people with a learning disability is extremely poor. These services possess neither the expertise to offer specialist support, nor do they receive sufficient funding to offer counselling to this vulnerable group, which may well contain those with profound learning and multiple disabilities, thus making communication and counselling even more difficult.
	I raised this matter last October when I introduced my own Bill on sex offences, supported by Mencap, VOICE UK and the Ann Craft Trust, all organisations deeply involved in supporting victims of these heinous crimes. Alas, as yet I do not feel that I have received a satisfactory answer or, indeed, any answer.
	I hope that the Minister will review the availability of resources to ensure that victims with a learning disability are at last given the right and proper support. If it would help to resolve matters, I would gladly beat a path to the Minister's door to explore the way ahead. On the other hand, a cast-iron, copper-bottomed commitment—if that is possible—made now might well provide the solution. I look forward to the Minister's response.

Lord Astor of Hever: I fully support all that has been said by the noble Lord, Lord Rix, concerning the provision of support and counselling for those people with mental disorders or learning disabilities who have to go through the legal processes or give evidence in a trial. I agree entirely with the noble Lord that the national provision of counselling and therapeutic services for people with a learning disability is extremely poor. We believe fundamentally that specialist services should be provided with adequate funding for these circumstances, a point also made by the noble Lord.
	The criminal justice system is daunting for anyone, let alone those suffering from a mental disorder or a learning disability. Problems have arisen in the past because their evidence does not stand up in court under the scrutiny and interrogation of the defence counsel. I understand that provisions cannot be included in this legislation, but I would welcome assurances from the noble and learned Lord that steps are being taken to address these problems.
	The Bill admits that different rules apply for people with mental disorders or learning disabilities, in particular those who are incapable of giving consent. Other legislation dealing with how the criminal justice system works should similarly reflect and address those differences.
	On other grounds, Clause 33 is worrying. We would like to know why no functional test of capacity is included. How is a prosecution to be pursued under Clause 33? Who will be responsible for assessing the capacity of victims, questioning them, and providing them with access to the right support facilities and experienced care workers who can handle the inquiry? I shall certainly require a degree of persuasion from the Minister that these matters have been considered fully and that the procedure which would result from a prosecution brought under Clause 33, although not on the face of the Bill, has been thought through in detail and is appropriate to provide for the needs of these most vulnerable people.
	Legislation on mental capacity would help to clarify cases involving people who lack the capacity to consent to sex and should therefore be a priority in order to complement the provisions of this Bill.

Baroness Walmsley: I have great sympathy with the problem described by the noble Lord, Lord Rix, of finding a suitable platform for raising this important issue. I had a similar experience with regard to services for young people who abuse. It is disgraceful if the situation is as the noble Lord described. These are very vulnerable people in the most terrible situation and very much in need of highly qualified, experienced persons to provide appropriate services. The training of such people takes a long time, as does developing the range of experience necessary to do such specialist work. Producing enough people requires long-term planning, so I hope that the Minister listened carefully to the noble Lord, Lord Rix. The sooner something is done, the better. Maybe it will take five or seven years to produce enough people to fill the gap that the noble Lord identified.

The Earl of Listowel: I listened with concern to my noble friend Lord Rix, whose remarks brought to mind earlier debates in Committee about therapeutic services for vulnerable young people. Does the Minister expect anything in the Green Paper Children at Risk to address the issue of developing a workforce to work with such children? Will the noble and learned Lord bring to the attention of his colleagues working on the Green Paper the concerns raised today?
	There is concern at the delayed publication of part of the national service framework for children. Money is being passed to services throughout the country, yet the framework—particularly a document entitled The Emerging Findings—has not yet been published, so service commissioners will not be fully informed about how best to spend their budgets. Perhaps the Minister can convey my concerns. We would be interested to see the document coming forward soon, so that the right sort of therapeutic services are provided.

Lord Adebowale: I support my noble friend Lord Rix. The organisation Respond, like Turning Point, is very concerned about the lack of clarity on the critical issue of therapy for victims of sexual abuse who have learning disabilities. As the law stands, there is great uncertainty about whether a person with a learning disability will receive therapy, even though therapy can actually help people to deal with the legal process better and with the incredibly emotional pain of abuse.
	For too long, people who have been terribly hurt have been denied treatment for dealing with that hurt—an absurdity that must change. We know that abuse wrecks people's lives, yet often therapy is not made available to the victims of abuse. The treatment of people with learning disabilities is characterised by weak assessment procedures, uneven availability of treatment and lengthy delays. Poor service planning and low levels of commissioners' expertise prevent organisations such as Respond from doing their job properly. Funding is often too short term, rather than being matched to individual needs. This critical issue deserves our attention and I thank the noble Lord for bringing it to our notice.

Baroness Blatch: My understanding is that the noble Lord's opposition is a device to raise certain issues because I would not want to lose Clause 33—which does offer protection to some very vulnerable people. That does not, nevertheless, make the points raised by the noble Lord any less valid; it seems an excellent way of doing things. This is a very wide issue—it is not just about resources but about the quality of the services made available to people who suffer from a mental disorder or learning disability.
	My noble friend Lord Astor spoke about how this will work—the practice of making very sensitive judgments, what the tests will be and whether there will be a code of practice. They are very real issues.
	This is an ingenious device, but I would not like to see Clause 33 disappear from the Bill, because the protection it provides is very important.

Lord Falconer of Thoroton: What the noble Baroness, Lady Blatch, says is widely understood around the Committee. The noble Lord, Lord Rix, was kind enough to give me warning of the purpose of this provision. We have had equally legitimate and parallel debates on the position of the victims and the perpetrators of sex crimes, particularly those who are underage.
	One of the key principles underlying the offences in the Bill is that the provisions should offer better protection to the vulnerable. The sex offences review heard very disturbing evidence about the extent and nature of the sexual abuse of vulnerable people. The noble Lord, Lord Rix, has been drawing that to our attention in this House for a very considerable time. It included evidence that these vulnerable individuals are deliberately targeted for abuse by predatory offenders who calculate, all too often rightly, that they are less likely to be convicted than if they abuse somebody with no such disability.
	Existing legislation has offered inadequate redress because of the inadequate nature of the criminal offences. These provisions try to make the criminal law better and more effective as a means of seeking to reduce the level of abuse.
	The noble Lord, Lord Rix, is right when he says that that is only part of the story. What support is provided not just for victims who have a case brought in the criminal justice system but for those who are abused without proceedings being brought?
	I appreciate fully why the noble Lord has raised this issue. I sympathise with his concerns that those victims of crime who are in this situation need specialist help in very many cases in terms of counselling and other services to aid their recovery. I fear that I may not be able to give him the assurances that he seeks. There are two sources of funding. First, there is local authority social services funding. Funding for social services has gone up generally. Relationships with local authorities require that the discussions with them determine how much they give. In addition, the Department of Health provides support to voluntary sector organisations which play a part in providing the sort of counselling to which the noble Lord referred.
	The noble Lord knows better than I that for the year 2003–04, voluntary organisations in the learning disability field received approximately £1.4 million in Section 64 grant funding. That is made up of £496,000 paid in the current year and £898,000 that they applied for in previous years. The organisations that received this funding include his own organisation, Mencap, as well as VOICE UK, Respond and ARC. I anticipate that the noble Lord, Lord Rix, will say politely, "I know all that. It is not nearly enough; there is no over-arching strategy, it is patchy throughout the country because some local authorities do this and some do not". We would all share the view that provision needs to be much more focused and less patchy. That needs to be done as soon as possible. I cannot stand here and say that I can give an assurance that that will happen but we all agree that it should. I will take back what has been said today to my colleagues in the relevant departments.
	The noble Earl, Lord Listowel, raised the question of the Green Paper Children at Risk. That will obviously deal with a different category of children rather than the vulnerable people whom these provisions are intended to deal with. It will cover issues about how they are to be supported when they become victims of crime in the kind of circumstances with which the Bill is intended to deal.
	I appreciate that I have not dealt with the matter in a way which might satisfy all Members of the Committee. We are very mindful of the problem and recognise that the Bill can be part of the story.
	As regards the final issues raised by the noble Lord, Lord Astor of Hever, and supported by other Members of the Committee, it is not possible for me to give definitive indications of the precise circumstances in which this clause will be used. But it is absolutely right that it has to be dealt with incredibly sensitively having particular regard to the interests of the victim in the context of proceedings and in considering whether or not it is in the interests of the victim in every case to bring proceedings. That will occur and it will very often require advice and assistance to the CPS way beyond the normal advice which is given.

Lord Rix: I thank the Minister for that response. I am obviously disappointed that he has not got his hand in the Treasury's pocket. I hope that he will allow me to make further overtures to his department so that we may discuss possible ways of increasing the funding from perhaps other departments which are wealthier and more inclined to be able to distribute funds.

Lord Falconer of Thoroton: I agree to that, but with no expectation of success.

Clause 33, as amended, agreed to.
	Clause 34 [Causing a person with a mental disorder or learning disability to engage in sexual activity]:
	[Amendments Nos. 217 and 218 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 219:
	Page 16, line 34, leave out subsection (3).
	On Question, amendment agreed to.
	Clause 34, as amended, agreed to.
	Clauses 35 to 37 agreed to.

Lord Astor of Hever: moved Amendment No. 220:
	After Clause 37, insert the following new clause—
	"GUIDANCE
	The Attorney General shall issue guidance to supplement the code for crown prosecutors when deciding whether to prosecute those with a mental disorder or learning disability for sexual offences."

Lord Astor of Hever: In moving this amendment I shall also speak to Amendment No. 221 in the name of the noble Lord, Lord Rix. As Members of the Committee will be aware, there is concern that protection is provided for vulnerable adults without impinging on their right to a private sex life.
	This amendment aims to safeguard the achievement of this balance. Clauses 33 to 37 of the Bill could see two adults without capacity to consent prosecuted for engaging in sexual relations. That is clearly not the intended purpose of the Bill, but in its current form it poses a threat to the rights of vulnerable adults.
	However, situations may arise where two adults with differing levels of capacity are sexually involved leaving the party with less capacity open to exploitation. It is necessary, therefore, that some form of amendment be introduced to guard against both of these risks without diminishing the protection provided by these clauses. It is my view that regulations would be the best means of resolution as they would provide clear enforceable guidance on the proper usage of the Bill without curtailing potential protection.
	The prosecution of two adults equally lacking in capacity to consent could be avoided while the possibility of abuse by an adult with a learning disability or a mental disorder could still be accounted for. Regulations would hold the advantage of carrying statutory force, allowing parties to be prosecuted if they were found to be in breach and would serve as a strong preventive measure against misuse of the Bill. Redress therefore would not be limited, but the right to a private sex life for vulnerable adults would be maintained.
	Regulations are needed if the full protective potential of the Bill is to be realised. However, I should like to emphasise the need for regulations to have statutory force, in view of recent developments concerning the Mental Health Act 1983. There is a code of practice for the Act, but there has been much legal debate over whether it carries the weight of law. As a result, two recent breaches of the code have effectively been ruled lawful by the judge concerned. Those cases are now going to appeal. That clearly illustrates the grave danger that guidance or regulations can be wilfully ignored if they lack statutory force. I hope that the Government learn by experience and introduce regulations that explicitly carry statutory force and clearly set out guidance around the implementation of the Bill.
	After what I have just said about requesting comprehensive guidance under Amendment No. 220, I should make it clear that I fully support the principle upheld by the amendment tabled by the noble Lord, Lord Rix. It should be possible for two people with a mental disorder or learning disability to have a sexual relationship without fear of prosecution. That applies to those who are aware of their actions and can give consent and those who are not and cannot. Currently, the former can undertake a relationship without fear of prosecution so long as neither party uses threats, deception, inducement or exploitation, as covered by Clauses 38 to 42. However, no sexual activity is permitted between those with a mental disability who cannot consent, and there is a risk that someone engaging in such an activity could theoretically be liable to prosecution.
	Anyone who lacks the capacity to consent may not have a proper understanding of what behaviour is appropriate. It is not acceptable that they are dealt with by criminal prosecution, in the same way as someone who is not mentally impaired. I beg to move.

Lord Rix: Since the noble Lord, Lord Astor of Hever, has already spoken to Amendment No. 220, which seeks a different approach with a similar result, I shall keep my comments on Amendment No. 221 brief.
	I should say at the outset that I am not saying that sex between two adults, neither of whom knows what he is doing, is a good thing. I am saying simply that it is not a matter for criminal prosecution. Since there may be an inequality of strength or personality between the two parties, it may be entirely appropriate to stop the relationship if either or both parties is suffering rather than benefiting. That is to be sorted out there and then, in the light of all the facts and as sensitively as possible. It is not something to be sorted out over months and by involving the police and the courts.
	My proposed new clause is quite tightly defined. It says nothing about consensual sex between parties having capacity and choice, or abuse by one party who knows what he or she is doing of another who does not know what he or she is doing. It says nothing about the unlikely but not impossible situation of a large and forceful A, who does not understand the nature and impact of sexual activity, perpetrating sexual violence on a small and inoffensive B, who knows all too well what is going on but is powerless to stop it.
	I have concentrated on the most likely scenario and have sought to address it through direct provision in the Bill, although the Minister may prefer the guidance approach advocated by the noble Lord, Lord Astor of Hever. If so, I shall listen carefully to his comments, although I have an unrepentant preference for direct provision over assurances about future guidance.

Lord Campbell of Alloway: I support the amendment because the scale of mental disorder is all but infinite, and its effects are not so precisely known and are of various gravity. In a new look at the law—which this is in more senses than one—it is right that the Attorney-General should authorise a prosecution, having the advantage of totally objective advice as to the mental state of the person who is to be tried.

Baroness Blatch: I sound a note of caution on both Amendment No. 220 and Amendment No. 221. I wonder whether my noble friend Lord Astor of Hever is prepared to rely on the normal processes and the good sense and sensitivity of those who deal with these cases. If discretion is limited, it seems possible that the protection which the Bill offers might be undermined. It seems that there is a defence in the Bill whereby a person with severely limited understanding could not be convicted of an offence if they do not have the capacity. I hope that the noble and learned Lord can confirm that. I think that there is a defence.
	As my noble friend said, mental disorder or learning disability covers a huge spectrum of disability in terms of seriousness. If a person is at the less serious end of the spectrum, then the law will view them as more responsible for their actions than someone who has a serious mental disorder. It is a fact that some disabled people who commit sexual offences deserve to be prosecuted—there are occasions when that is the case. They may well take advantage of other disabled people or of children or of adults. That is why I really am worried that the blanket ban which I believe these amendments would introduce could result in such people escaping justice.
	I think that we run the danger that any additional guidance issued under Amendment No. 220 could be inflexible. Although I make that prediction, it may well be precisely the guidance that we would all want to see. However, the consequence of Amendment No. 221 is that a person could not be convicted of any sexual offence under Part 1 if both victim and perpetrator lacked sufficient understanding of the nature of the activity. That means that where the victim is learning disabled, the perpetrator can get away with committing a sexual offence against him if his lawyers can show a lack of understanding about sexual activity. That would mean that disabled people are again less protected.
	What is surprising about the amendment is that the exception is to the whole of Part 1. That could have severe unintended consequences if relied on as a defence by the perpetrator of, say, a child sex offence under Clause 9. It may be that defence lawyers will argue that neither party understood the nature of the activity—the perpetrator because of his disability and the child because of his age. As I said, the Bill as drafted contains a defence. A person who has severely limited understanding would not in any event be convicted of an offence as they would not have a mental capacity to have committed it in the first place.

Lord Falconer of Thoroton: I fully understand the considerations behind both amendments and I hope to give reassurance. It is perfectly plain that we all agree that the criminal law has absolutely no part to play in a significant number of the types of relationship to which the noble Lord, Lord Rix, referred. I should hope that it would not play a part in the vast majority of such cases. Usually, the prosecution of someone who lacks the capacity to understand the nature of his own actions due to a mental disorder or learning disability would be totally wrong and not possible as a matter of law because he could not understand that what he was doing was wrong. That would prevent a prosecution.
	Moreover, Clauses 33 to 37 require that,
	"A knows or could reasonably be expected to know that B has a mental disorder or learning disability and that because of it B is likely to be unable to refuse".
	It would be very unlikely that someone with a serious mental disorder would meet that requirement, which has to be proved in order to make out an offence. Nevertheless it has to be said that the exact nature of an individual's position and its impact on their capacity to consent, whether they are the perpetrator or victim of an action, is not something that can be precisely determined outside the consideration of the circumstances of the individual case. The nature of an offender's mental status is a consideration whoever the victim may be. The Crown Prosecution Service follows a code of practice in determining whether the evidential requirements are met and whether it is in the public interest to mount a prosecution.
	Amendment No. 220 would place a statutory obligation on the Attorney-General to produce supplementary guidance specifically in relation to persons with a mental disorder or learning disability. The code for Crown prosecutors and other CPS documents contain detailed guidance about the circumstances in which prosecution will be in the public interest. These will be updated as a matter of standard practice following the passage of the Bill.
	For persons with a mental disorder or learning disability, criminal responsibility is not something that comes with a specific diagnosis; rather, it depends on the nature and facts of the whole case. It needs to be taken into account. If the case ever got to the CPS—and in many cases it would not—it would need to consider whether the evidential requirements are complete and whether or not the public interest test had been satisfied.
	I do not think that the new legislation creates new issues in that regard so far as concerns the prosecution. I appreciate the thinking behind the amendments. The Government are not interested in criminalising that which is not criminal. But because of the difficulty of providing for every circumstance, whether in legislation or guidance, one has to trust to the good sense of both the authorities and the CPS; otherwise one would get into a situation where something that was obviously wrong which might be very exceptional was not covered.
	In the light of the assurances I have given, I hope that the noble Lord, Lord Astor, will feel able to withdraw his amendment; and that the noble Lord, Lord Rix, will not feel obliged to move his amendment.

Lord Astor of Hever: I am grateful to the Minister for his response. I agree with him and with the noble Lord, Lord Rix, that this is not an issue to be sorted out over a long period involving the police and the courts.
	We applaud the thrust of the amendment in the name of the noble Lord, Lord Rix. However, we are concerned that someone who has a mental disorder or a learning disability and cannot therefore consent may have a condition which makes it unsuitable for him or her to have a sexual relationship. He or she may tend to use force or be unable to register unwillingness on the part of the recipient of their affections and to respond accordingly.
	I am grateful for the support of my noble friend Lord Campbell of Alloway. My noble friend Lady Blatch asked whether it would be better to rely on the normal processes and pointed out that the guidance could be inflexible. We have received a great deal of briefing on the issue. Perhaps after discussion I may reflect on that. I agree with my noble friend that there are instances where someone with a mental disorder or learning disability deserves better treatment.
	I shall read Hansard carefully. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 221 not moved.]
	Clause 38 [Inducement, threat or deception to procure sexual activity with a person with a mental disorder or learning disability]:

Lord Falconer of Thoroton: moved Amendment No. 222:
	Page 18, line 26, leave out subsection (2).
	On Question, amendment agreed to.
	Clause 38, as amended, agreed to.
	Clause 39 [Causing a person with a mental disorder or learning disability to engage in sexual activity by inducement, threat or deception]:

Lord Falconer of Thoroton: moved Amendment No. 223:
	Page 19, line 4, leave out subsection (2).
	On Question, amendment agreed to.
	Clause 39, as amended, agreed to.
	Clause 40 agreed to.

Lord Falconer of Thoroton: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Northern Ireland Act 2000 (Modification) Order 2003

Lord Williams of Mostyn: rose to move, That the draft order laid before the House on 27th March be approved [16th Report from the Joint Committee].

Lord Williams of Mostyn: My Lords, the Northern Ireland Act 2000 provides for the Secretary of State to run the Northern Ireland executive departments but also for special legislative powers in place of those of the assembly. Those powers would expire, if not renewed, on 14th April of this year.
	Efforts to restore the Assembly have not yet quite succeeded. I am sure that we all hope for a speedy restoration of devolved government to Northern Ireland. At the moment of restoration, the powers we seek to renew today, along with the machinery of direct rule, will fall away and the devolved Assembly and Ministers will take back their full authority.
	I recognise that we place a significant burden on this House in the months during suspension. We have brought forward elements of the Assembly's programme that had not been fully enacted by suspension on 15th October. We tried to implement that programme to the same timescale that the Assembly would have done, which has meant a great deal of work. If, contrary to our hopes, it is necessary to bring forward further orders, I undertake that we shall generally allow a period of three months' public consultation on draft orders before they go through formal stages here. That will give an opportunity to everyone, including of course your Lordships, to contribute to the development of legislation before its final form.
	We hope to see the early restoration of stable and inclusive institutions and early steps towards the devolution of policing and justice. Your Lordships will want to know that the following statement was made from 10 Downing Street today just after noon:
	"Continuing discussions between the Governments and the pro-Agreement parties have led the Governments to conclude that sufficient progress has not yet been made which would allow the holding of a meeting between the Prime Minister, the Taioseach and the parties later today. The Prime Minister and the Taioseach will meet this afternoon in London to review the situation".
	If there is success we shall need to return to your Lordships in the near future to seek authority to carry various proposals into effect, including—we hope—at an early stage the restoration of devolved government. I beg to move.
	Moved, That the draft Order laid before the House on 27th March be approved [16th Report from the Joint Committee].—(Lord Williams of Mostyn.)

Lord Glentoran: My Lords, I thank the noble and learned Lord for his remarks. What he said in a short and brief statement is in fact a huge happening. With no blame on the noble and learned Lord or, on this occasion, his Government, we are where we are in relation to the statement from 10 Downing Street to which he referred.
	It is no secret that those of us who follow affairs in Northern Ireland were hoping for a major statement and, if I may say so, a major happening. That clearly has not happened, to the disappointment of us all. That is felt not only here but throughout the Province, on the streets of our cities and towns. The population were waiting for something that would give them hope that we could return to devolved government and progress towards a complete and absolute democratic state and peace.
	We are patient. We are still waiting and hoping. Easter should be a happy time. It has not yet arrived. Let us hope that there will be some news from our Province before Easter that can be termed good tidings. The order has to be passed today. All I can say is that I support it and I hope that we will not have to do the work of Stormont and that we will not have to pass a repeat order in six months' time.

Baroness Harris of Richmond: My Lords, I take a slightly more robust line than the noble Lord, Lord Glentoran. We have no wish to detain the House, but it is important that the views of these Benches are placed on the record. We support the order, but reluctantly. We do not believe that Orders in Council are the best way to legislate.
	Orders were at different stages of the legislative process in the Assembly when they arrived in Westminster. Some had nearly completed all stages and been subject to a great deal of scrutiny from the Assembly. Some had been through Committee stage or were in the process of being considered by an Assembly scrutiny committee. Therefore, they might have benefited from extra time at Westminster. Some had completed only the second stage—effectively, a Second Reading debate—and had not been scrutinised in any detail. One order, the Strategic Investment and Regeneration of Sites (Northern Ireland) Order, had not even been through the second stage in the Assembly. My noble friend Lord Smith of Clifton, who is unable to be in his place today, voiced strong concerns at the time about the appropriateness of bringing forward this legislation as an Order in Council when the Assembly had not even had the opportunity to discuss the principles involved.
	Having said that, the noble and learned Lord the Lord Privy Seal took on board the concerns expressed by several noble Lords, and allowed provision for a special Northern Ireland Grand Committee to look in more detail at some of the orders off the Floor of the House, for which we were most grateful. However, being Orders in Council, there is no provision for amending the legislation. I recognise that there must be some mechanism to legislate for Northern Ireland, if the Assembly goes into suspension. We cannot have a situation where Northern Ireland is left in limbo and a number of important initiatives are delayed by months.
	I have a question for the Lord Privy Seal. It is one that he may have answered previously as regards his proposal for three months' consultation. If we were to find ourselves in a similar situation on another occasion, would the Government consider sending a number of these orders to a pre-legislative scrutiny committee, which would be able to take evidence from interested parties? Such a process would be particularly important for orders that had not received detailed scrutiny in the Assembly.

Lord Molyneaux of Killead: My Lords, I shall be brief. I begin my remarks with a profound apology for missing two opening speeches. I was working diligently upstairs in the House and did not notice the change of business on the television screen.
	Today the Prime Minister had hoped to unveil a new initiative on Northern Ireland; but, regrettably, that hope has been dashed by the intransigence of what one might term the "republican guard" (Irish version), who have gobbled up all the concessions, but, true to form, always demanded more. The Downing Street team has been very patient, and most generous. But obviously the team now realises that it is impossible to concede anything more without causing irreparable damage to the entire body politic in Northern Ireland.
	Fortunately, there is a constructive and workable alternative. There is an acceptable workable model in Wales, which could, without any difficulty, be tailored to suit Northern Ireland. It closely resembles the plan endorsed by 14.5 million electors in the 1979 general election. That model is proof against sabotage—no blocking powers to frustrate the greater number. It simply provides for administrative devolution, which works perfectly well in Wales. No one—no party—is excluded, unless they exclude themselves. Huffing and puffing cannot obstruct sound governance. The unthinking will say that it is not enough. Very well, but do they mean to come clean and state their preference for total integration, via direct rule from the sovereign Parliament?

Lord Williams of Mostyn: My Lords, I am grateful for the contributions made this afternoon. I agree with the thrust of the remarks made by the noble Lord, Lord Glentoran. He said that he was disappointed; indeed, all of those concerned in one way or another with Northern Ireland matters are disappointed. The noble Lord said that both he and his party are patiently waiting and hoping—a sentiment that we can all echo.
	In response to the noble Lord, Lord Molyneaux, it is important for me to repeat what the two Governments said. They could have taken the easy option, but they did not. They said that,
	"sufficient progress has not yet been made".
	That is rather an important and significant point.
	The noble Baroness questioned me on what I said about public consultation. I take her point entirely. I am happy to reaffirm that we shall generally allow a period of three months for public consultation so that all those interested can make their representations and your Lordships will be able to consider them. I believe that we have a good record.
	The noble Baroness was kind enough to refer to the Northern Ireland orders Grand Committee. I believe that we shall have an opportunity to discuss those. But—I agree with the noble Lord, Lord Glentoran—I reiterate that the Government's firm policy is that we do not wish to be in that position and, as he said, we certainly do not wish to renew the order in six months' time. I am obliged to noble Lords.

On Question, Motion agreed to.

Iraq: Humanitarian Assistance and Reconstruction

Baroness Amos: My Lords, with the leave of the House, I would like to repeat a Statement made in another place by my right honourable friend the Secretary of State for International Development. The Statement is as follows:
	"I would like, with permission, to make a Statement about the humanitarian situation in Iraq and the international planning for post-conflict rehabilitation and reform.
	"It is now 22 days since military action began. Coalition forces are occupying a large part of Iraq, including parts of Baghdad. British forces are occupying much of the south east. Our forces have been providing humanitarian assistance in the areas they occupy in line with their obligations under the Geneva Convention and The Hague regulations. The Treasury has provided £30 million to fund these efforts and my department is continuing to provide advice on humanitarian issues to the UK Armed Forces.
	"In most of the country, food is not currently a major problem. Because the Oil for Food programme distributed additional rations in central and southern Iraq before the start of the conflict, supplies will not run out for many families until the end of April. We hope the Oil for Food programme can be re-established by then. There are not so far the large numbers of internally displaced people and refugees that were feared. However, the risk remains that people may move if there are shortages of food or medical supplies or if the fighting escalates. The UN system has made contingency plans to cope with large movements of people.
	"The main humanitarian problems to date have been of water supplies in towns and cities to the west and south of Baghdad where power supplies have been disrupted. Disruption to water supplies presents a real threat to health. In some areas, supplies have now been reconnected or water is being supplied by tankers—the Royal Engineers built a valuable pipeline from Kuwait into Umm Qasr through which water is being tanked to other towns—but in others the problems remain. We are monitoring the situation very closely and are looking to do whatever we can to resolve the problems. UK forces are doing all they can to restore power supplies in the area they control.
	"Over the past few days, we have also received reports of an increasingly serious humanitarian situation in Baghdad. Hospitals are overwhelmed with casualties. Electricity is mostly out of order. Some parts of the city no longer have piped water. Most hospitals are using back-up generators and stocks of additional water pre-positioned by the International Committee of the Red Cross in recent weeks. These are now beginning to run out.
	"We heard yesterday from the ICRC of violent looting in Baghdad—far more than in Basra—where a breakdown of law and order is feared. There are reports of a hospital being looted and individuals attacked and, in some cases, raped. The ICRC has said that it is temporarily unable to pursue its emergency assistance mission in Baghdad. We have offered to do all we can to help, and arrangements have been made to secure the ICRC warehouse in Baghdad. ICRC's senior logistician has been killed. I am sure the whole House would like to offer its condolences to his friends and family and express its support and admiration for the work the ICRC is doing in keeping water, energy and medical facilities functioning in this very difficult situation. It is a very fine organisation.
	"There has also been looting in Basra, Umm Qasr and elsewhere in the south. In Basra, some water plants have been looted and rendered unserviceable. UK forces are working with local leaders to try to restore order. There are reports today that the Kurds have entered Kirkuk and that looting is also taking place there. We are also monitoring that situation very closely.
	"As soon as it is safe to do so, UN agencies will return and take over responsibility for co-ordinating humanitarian support in accordance with humanitarian law and principles. The UN has considerable experience of this role and is well prepared for operations in Iraq. Last week the UN security co-ordinator made an assessment of some parts of southern Iraq and a number of UN agencies and NGOs have made initial visits to those areas.
	"In the north of Iraq, assistance is being provided by the local authorities, UN agencies and NGOs. There are some displaced people, but the great majority are being accommodated by relatives or local authorities, and assistance is being provided where it is needed. The World Food Programme has succeeded in getting food over the Turkish border and this is now being distributed.
	"There are serious problems with unexploded mines and ordnance, some of which date back to the 1991 war. Border areas are heavily mined. The coalition is providing information to the UN Mine Action Service on mines and unexploded ordnance of which they are aware. UNMAS is mapping this and is planning a programme to raise awareness of the dangers, mark off affected areas and make them safe. We are supporting the mines action group and will contribute to further humanitarian mine action through our response to the UN appeal.
	"On 28th March, the UN launched its flash appeal for Iraq. I committed £65 million, that is some 100 million dollars, from the United Kingdom on the day the appeal was launched, and contributions from the United States, the European Union, France, Germany and the Netherlands bring current commitments to over 1.2 billion dollars. The total appeal was for 2.2 billion dollars for six months and the UN is hopeful that this will be partly funded by the Oil for Food programme.
	"The total DfID commitment to support humanitarian work in Iraq is now £115 million, made up of £32 million to the Red Cross, £78 million to the UN and £5 million to NGOs. We have another £95 million available for further contributions in response to evolving needs. In addition, the Chancellor announced yesterday that he would set aside a further £60 million for DfID to claim from the Treasury if and when needs arise.
	"The House will be aware that I have made a commitment—and I think this is widely supported—that I will not redirect funds to Iraq from other emergencies like Southern Africa, Ethiopia and Eritrea, Afghanistan or the West Bank and Gaza. Nor will I divert funds from ongoing programmes supporting development for poor people elsewhere.
	"When I made my last Statement on 24th March, I said that the most important priority was to restore the operations of the Oil for Food programme. On 28th March the UN Security Council unanimously approved Resolution 1472 giving the Secretary-General authority to adapt the programme to changed circumstances, so that it could continue to operate for 45 days. The World Food Programme estimates that most Iraqis' current household food stocks should last until around the end of April.
	"While the UN, Red Cross and NGOs can provide assistance to cover a short gap in the programme, the scale of need with 16 million Iraqis totally dependent on the programme and most families partially dependent means that it is critical that we get Oil for Food working again as quickly as we can. The World Food Programme concluded contracts last week to buy a further 400,000 metric tonnes of food aid for Iraq, which it intends to use to replenish the OFF distribution system. These supplies should start reaching the region by late April. But they will only reach people if we can keep the distribution system in place. This means helping Iraqis keep 55,000 separate outlets across the country operating, 45,000 of which are in the centre and south of Iraq. In some parts of the country, they are still doing so; in others it will be a greater challenge. We will work hard at this and I will keep the House informed.
	"We are also working on plans for reconstruction and development. The Geneva Convention and The Hague regulations impose obligations on occupying powers to provide for humanitarian needs, keep order and to keep the civil administration operating. But major reform and reconstruction require the authority of a legitimate government authority. My right honourable friend the Prime Minister and President Bush made clear in their Hillsborough communique that they plan to seek the adoption of new UN Security Council resolutions that will affirm Iraq's territorial integrity and make provision for an appropriate post-conflict administration for Iraq.
	"The UN has a vital role to play in helping the Iraqi people to establish a broad-based and fully representative Iraqi interim authority as soon as possible. The establishment of a legitimate government is essential for the engagement of the World Bank and International Monetary Fund and the international community to provide support to the Iraqi interim authority in Iraq. Without the full involvement of the bank and fund, rehabilitation and reform will be less effective.
	"Iraq is a naturally wealthy country with considerable oil resources, educated people, strong institutions and a proud history. It should be a prosperous middle-income country. In order to make progress, there will need to be agreement to reschedule and restructure Iraq's huge debt and reparations claims. Currently, there is little economic activity in Iraq apart from oil exports, which fund a massive programme of handouts through the Oil for Food programme. The reform effort will need to support Iraq in a transition from a centrally planned, impoverished economy to build a modern growing economy. It will be possible to phase out the Oil for Food programme as the economy develops.
	"The atmosphere in the wider region is currently tense and angry and the conflict has caused economic decline in neighbouring countries. Economic development in Iraq will benefit its people and the wider region, but we must also remember that there is a severe humanitarian crisis in the West Bank and Gaza Strip and that progress in the Middle East requires full implementation of the roadmap to the establishment of a sovereign Palestinian state alongside Israel by 2005. My right honourable friend the Prime Minister and President Bush re-affirmed their commitment to the implementation of the roadmap at the Hillsborough talks.
	"Events on the ground in Iraq will change day by day. As the military phase of the crisis comes to an end, the priority will be to provide order and humanitarian relief and to establish an Iraqi interim authority so that the longer-term reconstruction effort can begin. I will keep the House informed. Reports on the humanitarian situation are being placed in the Library of the House each weekday morning".
	My Lords, that concludes the Statement.

Baroness Rawlings: My Lords, we are deeply grateful to the noble Baroness for repeating the Statement made by the Secretary of State in another place. We welcome the swift progress that the military campaign has made. Although the humanitarian situation in Baghdad remains very serious, a lengthy siege of Baghdad could have caused an even more serious humanitarian disaster.
	The Red Cross has highlighted the problem of power and water cuts in Baghdad that the Minister mentioned. Now that Saddam's grip on power has been considerably weakened, will the coalition forces or any NGOs be able to restore the power and water supplies as a matter of urgency? The Red Cross also reports that hospitals in Baghdad are stretched to their limits as a result of fighting, but there are awful shortages of medical and surgical supplies. We add our support and admiration for the work of the International Committee of the Red Cross, but is Baghdad safe enough for any NGO to be able to deliver emergency medical supplies, or will the coalition forces do so?
	I turn to the wider problem of order and security in Iraq. There is an urgent need for the restoration of security and order in areas liberated by the coalition forces. The chaotic scenes of violence and looting that we have seen on television are, we are told, preventing aid organisations from delivering vital aid to Iraq. What advice is the Department for International Development giving to aid agencies that wish to work in Basra and other parts of Iraq? Does the Minister believe that it is currently safe enough for them to work there?
	If aid agencies are unable to enter Iraq for some time, does the Minister accept that the coalition must discharge its responsibilities under the Geneva Convention to deliver aid? Given that the war is not over and our forces will still be engaged in fighting the remnants of the Iraqi regime, how well equipped are British troops for keeping the peace? Does the Minister agree with me that there is a key role for the United Nations to become involved now in delivering humanitarian aid?
	The big question remains over the extent of the UN's role in the reconstruction—or rehabilitation and reform, as the Minister calls it—of Iraq. Earlier this week, the French President, Jacques Chirac, said that the UN should,
	"take on the political, economic, humanitarian and administrative reconstruction of Iraq",
	and that the,
	"reconstruction . . . of Iraq is a matter for the United Nations and it alone".
	That statement was quoted in the Independent and the Financial Times on 9th April 2003. Is that the British Government's position?
	The Secretary of State has stated that, without a UN resolution on the reconstruction of Iraq, coalition forces will be an occupying army under international law. Given the rapid progress made over the past few weeks, a resolution on reconstruction will therefore be required sooner rather than later. Can the Minister tell noble Lords what progress has been made on getting that resolution?
	The World Bank and the IMF are holding their spring meetings this weekend. Can the Minister clarify whether or not they will be providing help in the reconstruction of Iraq even if there is no UN resolution backing the process? All of us in Europe are still eternally grateful to the United States for the Marshall plan that followed the Second World War. We hope that the US will once again be as generous.
	There were media reports earlier this week that officials from DfID had been lined up to act as deputies to Americans in the Pentagon's Office for Reconstruction and Humanitarian Assistance. Can the Minister comment on the co-operation between her department and the Pentagon on the reconstruction of Iraq?
	If our troops are to be welcomed as liberators and not as conquerors, we trust that Iraqis, too, will be closely involved in the process of reconstruction. What co-operation is taking place to choose which Iraqis will be involved? Can the Minister say what is being done to make certain that Iraqi companies, teachers, doctors and nurses are fully involved in the rebuilding of their country? What consultation is taking place with the Iraqi opposition groups on the form of a new government?
	We commend all the troops who have done so much to liberate the people of Iraq over the past three weeks. We also pay tribute to the courage of the people of Iraq who have come into the streets to celebrate the downfall of Saddam's regime. We have a duty to mirror the success of the military campaign with an effective programme of humanitarian relief. We hope that the end of the Saddam Hussein regime will herald a new beginning for the Iraqi people.

Lord Roper: My Lords, we on these Benches are also very grateful to the Minister for repeating the very full Statement that her right honourable friend gave to the House of Commons earlier today. Winning the peace is now of as great importance as winning the war has been. The central tasks of the members of the coalition, as set out in the Statement, in ensuring there is no further deterioration of the humanitarian situation and the rehabilitation of Iraq are of great importance.
	We need to show that we are taking our responsibilities under the Geneva Convention and The Hague regulations properly. Our intentions to the people and to the region are clear. As has already been shown to some extent in Basra, there is a function of winning hearts and minds in Iraq by fulfilling those functions properly. But it goes further than that. It is how we behave in these matters that will also help to win hearts and minds outside Iraq and persuade people elsewhere in the world of our intention our behaviour.
	We were grateful to learn from the Statement, as I think we knew, that food is not currently a major problem. The food is unlikely to run out until the end of April. However, the end of April is not too far away. How will we be sure that the essential network of 55,000 outlets is up and running in three weeks' time? How many of them have been looted during the problems of the last few days? How will we ensure that there are secure lines of communication to take in the food ? There was good news that the railway is being tested at least a certain way inland. However, there are still serious problems about ships of any significant draft reaching the port of Umm Qasr. It is important to know how the dredging is going on.
	More seriously, it appears that a number of merchant vessels are reluctant to enter Umm Qasr because they cannot obtain insurance to enter the area. Can the Government provide some guarantee of insurance to ships which need to bring in essential requirements?
	We share the sadness expressed in the Statement over the death of the senior logistician of the ICRC in Baghdad. We are concerned that since then the UNICEF office there has been looted. Two of the personnel of Medecins sans Frontières are still missing. We are in a difficult situation, and as the noble Baroness, Lady Rawlings, said, the question of the hospitals and the availability of medicines, particularly in Baghdad but also I gather in Basra, are critical. I hope we can ensure that those essential medicines which are reaching their limits are replaced in the relatively near future.
	This morning during the debate on the Foreign Secretary's Statement there was a discussion about the proposal of the Government to send some senior police advisers to Iraq. I hope that the Government, together with their coalition partners, and more widely, would look at the real experience that UN civil police have had in so many places over the years. They are not heralded much, but UNCIVPOL have provided many essential police, and the UN does have experience. That is one of the key areas in which the UN could continue to play a part.
	I turn to the point made about the £270 million that was referred to in the Statement. That should be made available without any diversion from other matters and is very welcome. We note that £270 million is a relatively small sum compared with the military costs of the campaign. As regards the Oil for Food programme, it has a rather false name. If one looks back at the way in which the money from that oil has been used recently, it has not only been used for food, but for a great range of activities which have enabled the modernisation of a large section of Iraq's infrastructure. Will it be possible under Resolution 1472 for those funds to be continued to be used, thus giving the United Nations an important lever in the way in which the rehabilitation programme is carried out?
	I welcome the words of the Statement which said that the United Nations has,
	"a vital role to play in helping the Iraqi people to establish a broad-based and fully representative Iraqi interim authority as soon as possible".
	That goes further than the Hillsborough statement, where the "vital role" only referred to the humanitarian side. I hope that the words of this Statement are now accepted by all of our coalition partners.
	At the end of the Statement, the noble Baroness referred to the helpful reports that DfID had placed in the Library of the House each day. Would it be possible for those to be e-mailed to Members who have a concern in these matters during the Recess, when we are away?
	As the noble Baroness, Lady Rawlings, said, the roles that our forces and our people will play in carrying out the tasks of humanitarian aid will be challenging. They will be challenging in a different way from the military tasks, but we must respond to them, if we are to show the importance that we attach to them. I believe that that is the view of your Lordships.

Baroness Amos: My Lords, I thank the noble Baroness, Lady Rawlings, and the noble Lord, Lord Roper, for their comments. I will try to address their questions in turn.
	The noble Baroness asked several questions about order and security and asked whether it was safe enough for people from the International Committee of the Red Cross and other NGOs to operate. The situation is different in different parts of Iraq. The first responsibility of our forces is to secure everyone's safety and ensure that it is possible for humanitarian workers to operate. It is not necessarily easy or straightforward to do that. In Basra, for example, there has been some looting. Under the Geneva and Hague Conventions, our forces have an obligation to keep law and order. Noble Lords will know that our military have worked with local leaders to secure law and order. We have considered the question of policing in particular. The noble Lord, Lord Roper, mentioned police advisers.
	Things are more problematic in Baghdad. In the south, the UN security co-ordinator has gone in, and we are trying to ensure that there is access for humanitarian workers. Workers can go into the south of Iraq, but I must stress that can be done only with a high level of protection that is not yet possible in Baghdad. Our forces will endeavour to ensure that as quickly as possible. The noble Baroness asked about the delivery of humanitarian aid by the UN. We all want to see that happen, and that is why the security environment is so important. It is a priority for the military forces.
	We see the reconstruction as happening in three phases. The noble Baroness mentioned the statements made by President Chirac. There will be the immediate post-conflict phase, when our military will have a responsibility under the Hague and Geneva Conventions, as I said, with particular regard to law and order. In that time, they will also have responsibilities relating to humanitarian assistance. Once security is established, it will be possible for humanitarian workers to come in. As I said, we have seen that, in a limited way, in the south.
	There will then be a move with the Department of Defence's Office of Reconstruction and Humanitarian Assistance. We are in close co-operation with ORHA, and, in a previous Statement, I mentioned to noble Lords that DfID and FCO officials were working with ORHA. We will then move quickly from that to the Iraqi interim authority, run by Iraqis and chosen by Iraqis. Then, we move into the longer term, and I have no sense of how long the interim to the longer term might be. That will become clearer.
	It is possible that we will need more than one UN resolution. We want, of course, a UN resolution relating to Iraq's territorial integrity. There is the issue of reconstruction and reform, and we will also want to authorise the interim authority. It is not yet clear whether that will require three resolutions or two, and we are engaged in discussions with our Security Council colleagues and with the UN on that matter.
	The noble Baroness, Lady Rawlings, asked for an assurance that Iraqi companies, teachers and so forth would be involved in the rebuilding process. I can assure the noble Baroness on that point. Indeed, if she heard my right honourable friend Clare Short in another place earlier this afternoon, she made it absolutely clear that we need to use the skills already available in Iraq. It is not for us to send in people from outside the country, but rather to use the considerable skills that exist within Iraq.
	The noble Lord, Lord Roper, said that it was important for us to win hearts and minds inside and outside Iraq. I agree entirely with the noble Lord on that. The sensitive handling that we have witnessed on the part of our own troops in Basra is something which I hope will help that process. It is important that we work together to ensure that the essential network of outlets is kept up and running. Constant contact on that is maintained between ourselves and our coalition partners, and between defence and humanitarian experts.
	All our thoughts go out to the brave humanitarian workers in Iraq. They are facing a very difficult situation with immense courage. I agree with the noble Lord, Lord Roper, that what we saw with regard to the looting of the UNICEF office and the killing of the ICRC logistician was extremely shocking. We hope that there will be no further incidents. The humanitarian workers are very brave indeed to do what they are doing. The UN civil police have real experience of such situations. That is why it is important that we move towards securing some form of UN resolution as quickly as possible.
	I turn to the Oil for Food programme and the question of the UN having a wider responsibility. The noble Lord, Lord Roper, will be aware that until a wider resolution is agreed under which the UN can operate, the current phase of the programme will be limited to humanitarian needs. I hope that by the time a further resolution has been agreed in the Security Council on the Oil for Food programme it can be expanded to embrace some of the wider projects to be undertaken.
	I hope that I have addressed all the questions that have been put to me.

Lord Marlesford: My Lords, perhaps I may draw the attention of the noble Baroness to one sentence from the Statement made this morning by the Foreign Secretary? He stated that the Government had,
	"reaffirmed our commitment to protect Iraq's oil and other natural resources, as the patrimony of the people of Iraq, which should be used for their benefit".
	Will the Government confirm that, in the long run, the real key to reconstruction will be Iraq's oil? Can they further confirm that, for many years now, both France and Russia have—certainly in contravention of the spirit of sanctions—been doing deals with Saddam Hussein for the exploration of this oil? Are the Government aware that as far back as 1997, the Russian oil company, Lukoil, which has considerable political as well as commercial connections, had agreed a deal with Iraq whereby it expected to take possession of some 500 million tonnes—tonnes, not barrels—of oil which at present prices would have been worth some 80 billion dollars?
	Will the Government do their best to smoke out exactly what oil contracts the French and the Russians agreed with Saddam Hussein, of which they were anxious to get the proceeds and which of course goes a long way to explaining why they were so anxious to take the political line over Iraq that they did?

Baroness Amos: My Lords, first, as regards Iraq's oil resources, I can confirm that in the short to medium term, the top priority will be the Oil for Food programme. Some 60 per cent of Iraqis are dependent on that programme. However, once the Iraqi interim administration has taken control, it will have control of Iraq's oil. No doubt it will look closely at the priority needs of the country.
	I turn to the other points made by the noble Lord. A number of countries have commercial interests in Iraq. I am sure that, over the coming months, those interests will become clearer.
	I forgot to give one answer in response to the previous set of questions. We will happily e-mail reports if noble Lords will contact the Department for International Development.

Baroness Boothroyd: My Lords, while appreciating that coalition forces and troops should not be used as policemen during civil disorder, would it be possible for coalition troops to protect and secure the hospitals in Basra and Baghdad—where I understand there is much looting, vandalism and other abuses—so that at least the supplies that are available get through to those institutions?

Baroness Amos: My Lords, there is an obligation under the Geneva and Hague Conventions for the military to keep law and order, but in doing so the military must ensure that they are safe before moving on to secure other places. I assure the noble Baroness that protecting and securing hospitals is a top priority—as is trying to protect and secure supplies, including medical supplies. We worked very hard to protect and secure the ICRC warehouse in Baghdad because we were very concerned that it might be subject to looting.

Lord Judd: My Lords, my noble friend's remarks about the lead role to be played by the United Nations in humanitarian operations were immensely reassuring. Have the Government yet been able to discuss with British non-governmental organisations and humanitarian agencies whether they are now satisfied that arrangements are in place to enable them to keep to their tradition of working only in a situation in which they are seen to be impartial?
	For all of us who have worked in the area of humanitarian aid, my noble friend's comments about the absolute indispensability of an Iraqi administration being in place as soon as possible were immensely important. Does my noble friend accept that if the new administration is to have legitimacy and credibility in the world, the UN cannot just assume a consultative role in its formation but must be central to the whole task of bringing the new administration into being and seeing it become operational?
	More specifically, what is being done to plan for police training and to ensure that resources are in place for the administration of justice? We always talk about the rule of law, but it is immensely expensive. It requires lots of lawyers, judges, institutions and the rest. That alone will use up more than £270 million. Can my noble friend give an assurance that steps are being taken, beyond rhetoric, to ensure that arrangements are in place for the rule of law? Finally, does my noble friend accept that £270 million of aid can only be a small beginning and that the bill at the end will completely eclipse that sum?

Baroness Amos: My Lords, £240 million has been allocated to immediate humanitarian support—as DfID updates and statements have made absolutely clear. I was asked some time ago about the cost of longer-term reconstruction but at this point in time we have no idea. The international financial institutions are currently engaged in a needs assessment. They will not be able to operationalise it until there is a UN resolution that will enable them to operate in Iraq. We will return to those questions but the IFIs can undertake initial needs assessments.
	We have been involved in weekly discussions with British non-governmental organisations since 13th February and have shared information with them. NGOs are currently operating in northern Iraq and there are a couple in Baghdad-controlled Iraq—for example, CARE and Save the Children have a presence through their local staff. A number of NGOs are still refusing DfID assistance. We will continue to engage in discussions and dialogue, and if that situation changes, I will advise the House.
	With respect to the UN role, my noble friend Lord Judd said it was central—we have said it is vital. I do not think there is much difference in the language. With respect to what we do in the longer term on police training, the administration of justice, and so on, I agree with my noble friend that these are very big questions. They will need to be tackled. They are resource-intensive, and I am sure that the House will come back to them on a number of occasions.

The Earl of Onslow: My Lords—

Lord Beaumont of Whitley: My Lords—

Earl Russell: My Lords—

Baroness Crawley: My Lords, there is plenty of time for everyone.

The Earl of Onslow: My Lords, will the Minister take up what the noble Baroness, Lady Boothroyd, said? Let us assume, for the sake of argument, that somebody loots a hospital, and he is then stopped. What happens then? Is there any process or administration to deal with justice, summarily or otherwise, on the streets of Basra or Baghdad at the moment? I accept that this is a very difficult question for the Minister to answer.

Baroness Amos: My Lords, I would not expect the noble Earl to ask me anything but difficult questions. In Basra, our military are currently working with local leaders trying to establish some kind of policing system. This has not yet been established in an institutional way, but we are working on it. The situation is much more difficult and complex in Baghdad where the control is in certain areas and fighting is still going on. As I said to the noble Baroness, Lady Boothroyd, the military need to be safe and secure before they can move on to make particular areas or institutions such as hospitals safe and secure. That is very important. When there is movement on these issues, I am happy to write to the noble Earl to let him know.

Lord Beaumont of Whitley: My Lords, are the Government thinking in the short term—I realise that this is a statement about the short term—about the long-term cancellation of international debt on behalf of Iraq, bearing in mind that the main objection of many other countries is that that would benefit only the rich and the rulers? At present, when Iraq has no rich and no rulers, would it not be a good time to make that one of the first things we do to help?

Baroness Amos: My Lords, it will clearly be one of the things that the IFIs look at as part of their needs assessment with respect to the longer term reconstruction of Iraq. The noble Lord will be aware that the spring meetings take place this weekend and I am sure that this will be one of the subjects under discussion.

Lord Campbell-Savours: My Lords, does my noble friend recognise that the United Nations will have to earn anew the confidence of the people of Iraq which I believe it currently does not enjoy, if only because the United Nations is identified directly with the policy of containment, which has been a total disaster? It is also identified with, and was responsible for, the policy of sanctions, which it failed miserably to enforce, with the result that millions of people suffered. Finally, it is identified with the policy of opposition to war, which has led to the liberation of the people.

Baroness Amos: My Lords, I think there will be an onus on all of us in the international community to demonstrate to the people of Iraq that we are serious about the commitment we are giving to their longer term development. That will be for us, as coalition partners, and for the UN, as an over-arching international umbrella organisation. We will have to work very hard on this; the first test will clearly be establishing the interim authority, ensuring that the people of Iraq have a voice on that interim authority and that it speaks for the Iraqi people.

Earl Russell: My Lords, while I join with my noble friend Lord Roper in welcoming many parts of the Statement, perhaps I may also draw the Minister's attention to a report in last Sunday's Observer to the effect that an organisation of groups of Christian missionaries led by Mr Franklin Graham are ready and waiting to take over the administration of large parts of the aid programme. For the reasons so admirably outlined in this Chamber yesterday by the right reverend Prelate the Bishop of Oxford, will Her Majesty's Government use whatever influence they may possess to ensure that this development does not take place?

Baroness Amos: My Lords, I believe that I have made it absolutely clear in this House, as we have through the Statement, that we would want to see the UN playing a large role in the reconstruction. Obviously, NGOs will have some part to play, with the major role played by the UN with respect to immediate humanitarian needs. In that context, I take on board the concerns mentioned by the noble Lord. But in view of the role we see being played by UN organisations, given the experience they already have in Iraq with the Oil for Food programme, those concerns will not arise.

Lord Mishcon: My Lords, can we spare a moment, without any question of political allegiance, to pay homage to our Prime Minister, who has guided this country until now with wonderful courage and endurance?

Baroness Amos: My Lords, I entirely endorse the comments made by my noble friend.

The Earl of Sandwich: My Lords, does the noble Baroness agree that there are many areas of Iraq without recognised aid agencies or NGOs? Is her department going to be wary of those individuals who set up as aid organisations and who have a political incentive in seeking political legitimacy? Is the noble Baroness's department aware of that risk?
	The noble Baroness mentioned not reintroducing skills because there are many skilled people in Iraq. Does she agree that training is essential? For example, it is quite urgent for professionals in the media who have known nothing but Saddam Hussein's regime? Would her department consider, for example, short courses of three or six months which could be offered not only to Iraqis in Iraq, but perhaps those in the Iraqi community in this country?

Baroness Amos: My Lords, I believe that I can assure the noble Earl that, given our considerable experience of working with NGOs in other parts of the world, we are aware and know the risks which can arise sometimes in seeking to use their role for political legitimacy. It will be at the front of our minds as regards Iraq.
	As regards training and short courses, particularly in the media, that is something that we already carry out. It may well be that some Iraqi journalists have already attended programmes. I see absolutely no reason why we should not be doing that.

Lord King of Bridgwater: My Lords, I apologise to the noble Baroness for missing the beginning of her Statement. Nothing could have brought home more clearly than the Statement the terrible shortage that there will be in Iraq of authority, the means to enforce and also the resources to meet all the requirements that will now be presented in that trouble country.
	In that regard Iraq is perhaps fortunate in that it has close neighbours in a number of countries who have very good reason to be thankful for the departure of Saddam Hussein and his regime. As members of the Gulf Co-operation Council they have resources and disciplined manpower that could very well be useful. It would obviously be an act of great good neighbourliness on their part for the future. Her Majesty's Government have particularly close relations with the countries concerned. I wonder what discussions they will have to encourage them to see what part they can play in helping Iraq, their neighbour, in its time of need?

Baroness Amos: My Lords, I entirely agree with the noble Lord. Indeed, the GCC will be important. The noble Lord will be aware that we have been engaged in an ongoing dialogue with the GCC. In fact, my noble friend Lady Symons attended a recent meeting with the GCC and that discussion and dialogue will continue.
	The noble Lord is right. There are considerable resources in the region that could be used creatively and well in the longer term reconstruction and assistance to Iraq, and we will look to all those possibilities.
	House adjourned for the Easter Recess at ten minutes past five o'clock until Monday, 28th April.